[2014] FWCFB 1629
The attached document replaces the document previously issued with the above code on 27 March 2014.
The MNC reference in paragraph [42] is changed from [2013] FWC 9095 to [2013] FWC 9055.
Abbygayle Lang
Associate to Deputy President Gostencnik
Dated 27 March 2014.
[2014] FWCFB 1629 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT WELLS COMMISSIONER BLAIR |
MELBOURNE, 27 MARCH 2014 |
Appeal against decision [[2013] FWC 9055] of Commissioner Ryan at Melbourne on 21 November 2013 in matter number C2013/5606.
Introduction
[1] RACV Road Service Pty Ltd (Appellant) is covered by the RACV Metropolitan Patrol Services Enterprise Agreement 2011 – 2014 1 (Agreement). Last year the Appellant sought to alter the starting and finishing times of shifts worked by the Appellant’s patrol officers. These patrol officers are also covered by the Agreement. The Appellant sought to rely on clause 13.6(b) of the Agreement as authority for the alteration. Some of the patrol officers are members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Respondent). The Respondent is also covered by the Agreement.
[2] On or about 16 August 2013 the Respondent lodged with the Fair Work Commission (Commission) an application under s.739 of the Fair Work Act 2009 (Act) for the Commission to deal with the dispute in accordance with the dispute settlement procedure contained in the Agreement. Essentially, the issue in dispute was whether the Appellant could unilaterally alter shift start and finishing times of the patrol officers. The resolution of the dispute required the determination of competing constructions of certain provisions of the Agreement that were being advanced by the Appellant and the Respondent. The dispute was determined by Commissioner Ryan who, on 21 November 2013, published a decision (Decision) 2 in which the Commissioner concluded that the Appellant could not alter starting and finishing times of shifts worked by the patrol officers without complying with cl.42.5(c) of the Agreement.3 That clause prohibits changes to “the roster system” without prior consultation with patrols and the agreement of the parties.
[3] On 5 December 2013 the Appellant lodged a notice of appeal under s.604 of the Act against the Decision. We have decided to grant permission to appeal and to uphold the appeal. We have also decided to quash the Decision and on a rehearing we determine that on a proper construction of the Agreement the Appellant may, by giving seven days notice to patrol officers of the alteration to starting and finishing times of shifts to be worked by those patrol officers, alter those starting and finishing times. These are our reasons for doing so.
The nature of the appeal
[4] It was accepted that the dispute determined by the Commissioner in the Decision involved the interpretation of the Agreement. A determination of a disputed interpretation of an agreement does not involve the exercise of a discretion, and so the principles applicable to discretionary decisions do not apply.
[5] The nature of a discretionary decision was described by Gleeson CJ, Gaudron and Hayne JJ in Coal & Allied v AIRC 4 as follows:
“Discretion is a notion that “signifies a number of different legal concepts” . In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result” . Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.” 5[references omitted]
[6] The nature of the decision that is the subject of this appeal depends on a consideration of the determinations the Commissioner was required to make. In this case the Commissioner was resolving a dispute by arbitration by answering questions that involved interpreting the Agreement. There is no discretion involved in such a task. It follows therefore that, if permission to appeal is granted, we must determine whether the interpretation of the Agreement adopted by the Commissioner is correct. 6
The decision of the Commissioner at first instance
[7] In the Decision the Commissioner begins by correctly identifying that the resolution of the dispute required the determination of the competing positions of, on the one hand the Appellant’s reliance on cl.13.6(b) of the Agreement, and on the other the Respondent’s contention that a unilateral alteration would contravene cl.42.5(c) of the Agreement. 7 This required him to determine the proper construction of these clauses of the Agreement. The Commissioner next recites the text of cl.13 and cl.42 of the Agreement.8 The Commissioner then discusses the history of the provisions at issue9 before turning his attention to determining the disputed construction and operation of the provisions.
[8] In analysing the provisions at issue the Commissioner said:
“[27] It is clear that each of clauses 13.6 and 42.5 have work to do within the overall operation of the enterprise agreement and any interpretation of these clauses must ensure that they do have real work to do.
[28] The interpretation of clause 13.6 urged upon the Commission by the RACV seeks to divorce clause 13.6 from the previous history of the making and operation of collective agreements made between the RACV and its Patrol Servicepersons and in particular the agreed approach to rostering Patrol Servicepersons.
[29] On its face the plain words of clause 13.6 provide the RACV with the right to change the start and finish times of Patrol Servicepersons without the need to consult with the Patrol Servicepersons and without needing to have the agreement of Patrol Servicepersons to any change.
[30] The RACV contends that as long as they don’t change the structure of the roster that they have an unfettered right to change the start and finish times of shifts within the roster. Mr Pearce agreed with a proposition put to him by the Commission that within one of the exiting rosters, Roster 9A, the RACV could move the start time on every day by 9 hours and the roster would still have the employee starting on the same day. Mr Pearce’s only qualification on this application of clause 13.6 to the existing rosters was that whilst it was theoretically possible for the RACV to do this under clause 13.6 the RACV wouldn’t do this as it was not practical to do so.
[31] The evidence for the AMWU was that clause 13.6(b) had work to do but that work was limited.
[32] Mr Turnbull’s evidence was that he couldn’t recall clause 13.6(b) being relied on but that he was “aware that patrols’ start and finish times may have been changed was around public holidays, the Christmas period, it may have been to accommodate patrols when they attended training, they attend a training course I think annually and so a dozen would be taken off the road and they would need to alter rosters to do that I assume, start and finish times.”
[33] Mr Kraft gave evidence that he was aware that clause 13.6(b) had been used by the RACV in relation to “Alteration of school days, maybe patrols coming on light duties for Workcover, altering of times.” Mr Kraft also gave an example of RACV using the provision to move him within his roster by moving him to a different week in the roster so that he keeps working the roster cycle but has simply jumped ahead to a different week in the roster cycle.
[34] There was no evidence from the RACV that clause 13.6(b) had ever been utilised in the manner which the RACV now contends that it can be used. Mr Pearce’s evidence was that all changes to start and finish times had been done by agreement in the past.” 10
[9] Next the Commissioner considers whether, and to what extent, previous conduct of “the parties” was relevant in interpreting the terms of the Agreement, 11 and in concluding that he could and would do so, the Commissioner said:
“[37] In the present matter “each party by words and conduct would have led a reasonable person in the position of the other party to believe” that clause 13.6(b) was to be utilised for a very limited range of changes to address personal circumstances of a Patrol Serviceperson and that changes to the start and finish times of the agreed rosters would only occur by agreement pursuant to clause 42.5(c) of the Agreement. Such a conclusion is consistent with the way in which clause 13.6(b) and clause 42 (including its predecessors) had been used by the RACV since clause 13.6(b) was first introduced into the 2000 Agreement as then clause 2.2.6(b).
[38] Expressed slightly differently, it is clear that the RACV by its words and conduct would never have a led a reasonable person in the position of a Patrol Serviceperson or the AMWU to believe that clause 13.6(b) could be used by the RACV to alter the agreed start and finish times within the rosters in the manner proposed by the RACV.” 12
[10] Ultimately, the Commissioner concluded that alterations to starting and finishing times of shifts worked by the patrol officers could only occur by the Appellant complying with cl.42.5(c) of the Agreement. 13 The corollary is that the Appellant could not do so under cl.13.6(b) of the Agreement.
Grounds of Appeal
[11] The Appellant raises three grounds of appeal. First the Appellant says that in construing the Agreement, the Commissioner’s reliance on “evidence” of the Appellant’s previous conduct in relation to cl.13.6(b) and the alleged failure of the Appellant to explain to employees, at the time employees were considering whether to approve the Agreement, that the Appellant intended to rely upon that clause for a particular usage, was erroneous. Secondly, the Appellant says the Commissioner erroneously construed the phrase “Roster System” appearing in cl.42.5(c) of the Agreement as including starting and finishing times for shifts to be worked by patrol officers.
[12] Thirdly, the Appellant submitted that even if the Commissioner was correct in his conclusion that cl.42.5(c) applied to the starting and finishing times for shifts to be worked by patrol officers, the Commissioner fell into error by not considering which of cl.13.6(b) and cl.42.5(c) of the Agreement took precedence as each dealt with alteration is to the starting and finishing times of shifts. It is said that the Commissioner should have turned his mind to resolving the conflict between the two provisions, and had he done so, the Commissioner should have concluded that the specific provision in cl.13.6(b) should prevail over the more general provision in cl.42.5(c) of the Agreement.
[13] We deal with these grounds of appeal in our discussion about the construction of cl.13.6(b) and cl.42.5(c) of the Agreement below. Before doing so it is necessary to make some observations about the principles to be applied in construing terms of an enterprise agreement.
Principles of construction of enterprise agreements
[14] The principles to be applied to the construction of an industrial instrument are not seriously in issue.
[15] The general approach to the construction of instruments of the kind at issue here is set out in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union: 14
“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘....ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).” 15
[16] To this we would add the oft-quoted observations of Madgwick J in Kucks v CSR Limited 16 that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but:
“... [T]he task remains one 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.” 17
[17] Although in Wanneroo and Kucks their Honours were each respectively dealing with the proper interpretation of an award, the same principles are apt to apply to the interpretation of enterprise agreements. 18 For example, similar observations were made in Amcor Limited v Construction, Forestry, Mining and Energy Union: 19
“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.” 20
[18] In Amcor Kirby J said:
“However, certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail - including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.
. . .
The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
‘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.’ [references omitted]” 21
[19] Again in Amcor Callinan J said there was substance in the observations of Madgwick J in Kucks. 22 His Honour then said:
“An industrial agreement has a number of purposes, to settle disputes, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace. It is with the third of these that cl 55 of the Agreement is particularly concerned. It is important to keep in mind therefore the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties.” 23
[20] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo:
“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) 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 Geo A Bond and 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.’” 24
[21] Relevant also is the decision is Codelfa Construction Pty Ltd v State Rail Authority of NSW. 25 The dicta of Mason J, as he then was, (and with whom Stephen, Aickin and Wilson JJ agreed) has frequently been adopted and applied in matters concerning the interpretation of enterprise agreements. In Codelfa Mason J said:
“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.” 26
[22] The continued application of Codelfa was recently reaffirmed as the binding authority in Western Export Services Inc v Jireh International Pty Ltd. 27
[23] With these principles in mind we now consider the construction of the provisions of the Agreement at issue in this appeal.
Construction of clauses 13.6 (b) and 42.5 (c) of the Agreement
[24] Contextually, cl.13.6(b) and cl.42.5(c) of the Agreement appear as subclauses of broader provisions under the headings “Workplace Flexibility” and “Hours of Work” respectively. We set out in full below, both of the substantive provisions:
“13. WORKPLACE FLEXIBILITY
13.1 Guidelines for the achievement of maximum workplace capacity and utilisation shall be as prescribed in this clause.
13.2 There shall be co-operation between management and employees in improving member and customer satisfaction, productivity and flexibility. The parties also agree to cooperate to achieve the principles and initiatives identified in the RACV Corporate Plan, and the Member Services and Automotive Services business plans. This cooperation is aimed at ensuring the ongoing viability of the business. The implementation of any initiatives identified in the business plans referred to above will be in accordance with all the requirements of this agreement. This includes a requirement that RACV notifies and discusses with the Patrols and their representatives any major change that is likely to have a significant effect on employees (refer clause 14 – Introduction of Change).
13.3 Mixed Functions
Employees may be directed during any day to perform different functions within their skill, competence and training, provided that such direction is not designed to promote deskilling.
In the case of an emergency and/or during a period of peak workload, any member of RACV staff may be directed to work in any RACV work location or position. Such support may be utilised until trained staff are available to perform the work.
Any direction issued by RACV pursuant to this sub-clause shall be consistent with RACV’s responsibilities to provide a safe and healthy working environment.
When an employee is required to perform duties for a period of at least one day which attract a higher rate than the employee’s substantive position, the employee shall be paid at that higher rate for that period. Provided that, where an employee is required to perform duties which attract a lower rate of pay on a short-term or temporary basis, there shall be no adjustment to the employee’s salary including allowances.
13.4 Meal Period Flexibility
Clause 43 - Meals provides for flexibility in the timing of meal periods, enabling variation without notice, by consent, or when necessary, to facilitate continuous operation.
13.5 Movement of employees
Employees may be moved to temporarily replace other employees in order to maintain continuous operation. This may include the movement into RACV of staff to assist with operations where unusual circumstances or high demand require it.
13.6 Alteration of Hours of Work and Shifts
(a) Where appropriate, procedures enabling continuous operation during shift changeovers will be implemented.
(b) The time of commencing and finishing hours of work may be changed by seven days’ notice of the alteration given by RACV to employees.
(c) The ordinary hours of work which have been determined by RACV, shall not be altered, except in the case of an emergency without the giving of one week’s notice of such alteration.
13.7 Starting Times
Starting and finishing times of individual employees within a workplace may be staggered to ensure maximum capacity utilisation.
...
42. HOURS OF EMPLOYMENT
42.1 Ordinary Hours
The ordinary hours of employment shall be an average of 38 per week based on a roster mutually agreed upon provided that such hours shall not exceed:
42.1(a) Eight (8) in any one day, or
42.1(b) Fifty-six (56) in any seven consecutive days, or
42.1(c) One hundred and four (104) in any fourteen consecutive days, or
42.1(d) One hundred and sixty-eight (168) in any twenty-eight consecutive days.
42.1(e) Any other work cycle as agreed.
Such ordinary hours shall be worked continuously except for meal breaks at the discretion of RACV. Except at regular change-over of shifts, an employee shall not be required to work more than one shift in each 24 hours.
42.2 Reduction in working hours
A 38 hour week shall be worked. The method is to be as follows:
42.2(a) Except as provided in sub-clauses 42.2(d) and 42.2(e) hereof, the method may be any one of the following:
(i) work shorter hours each day; or
(ii) work shorter hours on say one day each week; or
(iii) fix a day on which all employees will be off during a particular work cycle.
42.2(b) An assessment should be made as to which method best suits the business and the proposal shall be discussed with the employees concerned, the objective being to reach agreement on the method to be worked.
42.2(c) In the absence of agreement at plant level, the procedure for resolving special, anomalous or extraordinary problems shall be applied. The procedure shall be applied without delay.
42.2(d) In cases where the employer and the majority of employees concerned agree, ordinary hours may be more than eight on particular days of a work cycle, thus enabling a day off to be taken more frequently than would otherwise apply.
42.2(e) Circumstan
ces may arise where different methods of implementation apply to various groups of employees in the establishment concerned.
Different methods of implementation may apply to various individuals or groups of employees.
42.3 Spread of Hours
Not more than twelve shifts are to be worked in any fourteen consecutive days inclusive of Sundays and holidays and the principle of a five day week is to be adhered to as far as is possible without reducing the efficiency of the service.
42.4 Rosters
42.4(a) Each patrol shall have access to the continuous roster showing their projected rostered days of work.
42.4(b) When leave is to be taken Patrol Officers on afternoon shift will change roster as follows:
(i) The second last shift will commence at 1.00 pm
(ii) The last day of the shift will commence at 9.00 am.
This procedure will allow for employees to be available to complete vehicle return and administration functions during daytime hours for patrol officers and also allow the required break between shifts.
42.4(c) On occasions when patrol officers are required to leave the company vehicle at an RACV premises, for annual leave or other reasons, the company will provide the most efficient method of transport home either by Cabcharge or RACV provided transport. Patrol officers may be brought into the RACV Depot one hour before the shift finish time to unload the vehicle and then travel home as described above.
42.4(d) 1400 Shift Meal Break
This allowance will be paid at the rate of the Voluntary Meals in the Field to be increased to $19.50
42.5 Variation by Agreement
42.5(a) The hours of employment as set out in this clause and the spread of hours as set out in sub-clause 42.3 may be varied by mutual consent between RACV and an employee or their representative. Any such agreement must be recorded in writing and may be terminated by either party by the giving of 28 days’ written notice.
42.5(b) A shift shall consist of not more than 10 hours inclusive of crib time. Provided that:
(i) in any arrangement of ordinary working hours where the ordinary working hours are to exceed eight on any shift the arrangement of hours shall be subject to agreement between RACV and the employee or the majority of employees concerned; and
(ii) by agreement between RACV, the employee or the majority of employees concerned (and where relevant, their representative), ordinary hours not exceeding 12 on any day may be worked subject to:
RACV and the employee/s concerned being guided by the occupational health and safety provisions of the ACTU Code of Conduct on 12 Hour Shifts;
proper health and monitoring procedures being introduced;
suitable roster arrangements being made; and
proper supervision being provided.
(iii) In respect to sub-clause 42.5(b), the employee may request their representative to become involved in discussions with RACV. RACV will recognise and accept the right of the representative to be involved in discussions.
42.5(c) Alterations to Roster System
There will be no across the board changes to the Roster System, with consequential changes to start/finish locations, during the life of this Agreement without prior consultation with Patrols, and the agreement of the parties.
There will be no changes to the roster system during the life of this Agreement without prior consultation with Patrols and the agreement of the parties.
42.6 Emergency Provisions
In a case of emergency beyond its control RACV may require an employee to change his/her usual working hours (including the meal break of such period).
42.7 Rest Period Between Rostered Shifts
Except in the case of an emergency, the rostered hours shall be worked so that employees have at least 10 hours off duty between the conclusion of their rostered shift on one day and the commencement of the rostered shift on their next working day.”
[25] Beginning firstly with the words of each provision which is put in issue, cl.13.6(b) provides clearly, and in our view unambiguously, that the “time of commencing and finishing hours of work may be changed by seven days notice of the alteration given by RACV to employees”. Contextually, that clause appears under the heading “Alteration of Hours of Work and Shifts” and forms part of a substantive cl.13 which deals with various flexibility arrangements and is itself headed “Workplace Flexibility”.
[26] Clause 42.5(c) expressly prohibits an alteration to the roster system without agreement. It provides, in summary, that there will be no changes to the roster system without prior consultation with Patrols and the agreement of the parties. Clause 42.5 (c) is somewhat repetitious on this point but nothing material turns on this. Contextually, cl.42.5(c) begins with the heading “Alterations to Roster System” and is part of a broader cl.42 titled “Hours of Employment”. Neither cl.42.5(c) nor the broader cl.42 deal in express terms with starting and finishing times of shifts, excepting that cl.42.7 provides for a minimum rest interval between the conclusion of a rostered shift and the commencement of the next rostered shift.
Clause 42.5(c)
[27] The Commissioner’s conclusion that the Appellant’s proposed alteration to starting and finishing times of shifts worked by the patrol officers could only occur by the Appellant complying with cl.42.5(c) of the Agreement, proceeds upon the basis that shift starting and finishing times are part of the “roster system”. A change to shift starting and finishing times must therefore be a change to the “roster system”. In our view, this construction of cl.42.5(c) is incorrect. A “roster” is a commonly used form of organising work amongst employees of an employer in many industries. The word “roster” is well understood in workplaces and carries its ordinary meaning unless a relevant industrial instrument provides for a different definition. The Agreement does not define “roster”. The ordinary meaning of “roster” is “a list of persons or groups with their turns or periods of duty”. 28 That the ordinary meaning is applied to the word “roster” in the Agreement is evident from other provisions in cl.42, for example cl.42.4(a) which provides that: “Each patrol shall have access to the continuous roster showing their projected days of work”. The periods of duty shown in the roster will include starting and finishing times.29
[28] A “roster system” concerns the co-ordination of or method, procedure or orderly manner (as the word “system” would suggest) that is to be applied, to determining the periods of duty for the persons or groups which will be set out in the roster. It is a change to that system, to which the prohibition in clause 42.5(c) is directed. The period of duty disclosed in the roster is not the “system”, rather it is part of the roster. The system is the method by which the outcome (the roster) is arrived at. It is not the outcome itself. Therefore “roster system” in cl.42.5(c) is a reference to the method of assembling the roster within the constraints imposed elsewhere in the Agreement (for example shift intervals in cl.42.7 and the working of ordinary hours in cl.42.1). “Roster system” does not refer to the starting and finishing times set out in any given roster.
[29] Furthermore, having regard to textual considerations, it seems clear to us that “roster system” does not include starting and finishing times of shift to be worked. First, it seems to us that if “roster system” included starting and finishing times of shifts to the work, it will also include locations of starting and finishing times. In the first paragraph of cl.42.5(c) the prohibition of changes to the roster system seems to have been expanded to include “consequential changes to start/finish locations”. This is suggestive of a conclusion that start and finish locations are not part of the “roster system”, otherwise it would have been unnecessary to make reference to that kind of change. It also suggested of a narrower meaning of “roster system” than that advanced by the Respondent. Secondly, cl.42 more generally deals with ordinary hours of work, reduction in hours of work, spread of hours of work, roster access, shift formulation after leave, hours of work variations and rest intervals between shifts. There is nothing in cl.42, which deals with starting and finishing times of shifts to be worked or how the starting and finishing times might be varied.
[30] Finally, the construction advanced by the Respondent that “roster system” includes starting and finishing times of shifts to be work would produce absurd and unworkable results. If the Respondent is correct, before starting or finishing times to be worked by an individual employee could be altered, even if that alteration had been requested by an employee, the Appellant would be required to first consult with “Patrols” and then obtain the agreement of the “parties”. Presumably “parties” means those parties set out in clause 3 of the Agreement. But even if “parties” refers to a narrower group namely employees affected by the proposed alteration, it would seem an odd result that an alteration to an individual employee’s starting and finishing times, whether permanent or temporary, would have the result of the Appellant being required first to consult “Patrols”, which by cl.4 of the Agreement, means “all employees . . . engaged to provide assistance services to members and customers”.
Clause 13.6 (b)
[31] Clause 13.6(b) allows for changes to starting and finishing times of shifts to be worked provided seven days’ notice is given of the alteration. Clause 13.6(b) is not expressed to subject to any other limitation. The language is clear and unequivocal. Contextually cl.13.6(b) appears amongst a number of other provisions which are collected together under the heading “Workplace Flexibility”. A provision which allows for alteration to starting and finishing times upon the giving of notice, seems to us to be consistent with that description.
[32] When “roster system” in cl.42.5(c) is understood not to include starting and finishing times of shifts to be worked, cl.13.6(b) operates consistently with the prohibition in that clause and is unencumbered by it. It therefore follows that the Appellant may proceed to alter the starting and finishing times of shifts to be worked by the patrol officers in accordance with cl.13.6(b) of the Agreement and is not prevented from doing so by cl.42.5(c).
Other appeal grounds
[33] We now turn to the specific grounds of appeal advanced by the Appellant and make some observations that are not already addressed above. We agree with the Appellant that the Commissioner erred in relying on evidence of past conduct of the Appellant in construing the meaning of cl.13.6(b) of the Agreement. The evidence relied upon fell well short of establishing a common understanding of the meaning of the provision or the common intention of the parties to the Agreement. In this context the Commissioner’s reliance on the obligations of the Appellant to explain the terms of the Agreement during the approval process is also misplaced. The Commissioner said:
“Where as in the present case, no specific explanation was given by the RACV to employees as to the term or the effect of the term of clause 13.6(b) of the current Agreement then objectively the intent and meaning of clause 13.6(b) given by both the RACV and employees and the AMWU must be the same as it had prior to the current Agreement.” 30
[34] It will be rare that a common understanding or objectively ascertained common intention will be shown by the absence of words. This might show a common inadvertence, however that is not the same thing. Even less so, when combined with the clear and unambiguous language of cl.13.6(b). The question whether the Appellant adequately explained the terms of the agreement to employees during the approval process does not result in a common understanding or common intention in relation to the application of cl.13.6(b) of the Agreement. Moreover, the fact that the Respondent made limited use, or no use at all, of the provision in the past, is not a basis for reading down the operation of cl.13.6(b).
[35] Furthermore there is nothing ambiguous about cl.13.6(b) that would have compelled resort to the evidence and the evidence should not have been relied upon by the Commissioner to contradict the ordinary plain meaning of cl.13.6(b).
[36] We also agree with the Appellant that even if the Commissioner was correct in his construction of cl.13.6(b) and cl.42.5(c), the Commissioner was in error in reading down the scope of clause 13.6(b) and giving primacy to clause 42.5(c). If there is a conflict between the clauses because they both dealt with starting and finishing times of shifts to be worked, then the appropriate approach to adopt in resolving the conflict is to give greater weight to the specific provision, 31 and in this case, the conflict is to be resolved so that that the general provision in cl.42.5(c) yields to the specific provision allowing for alteration of the specific subject matter at issue, namely starting and finishing times, in cl.13.6(b).
Permission to appeal
[37] Section 604 provides:
“(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.”
[38] The Explanatory Memorandum to what is now s.604 states:
“2327. The concept of permission in the Bill is intended to replace the concept of leave currently in the WR Act, using more modern terminology. Other than in the special case of subclause 604(2), the grounds for granting permission to appeal are not specified. It is intended that this would call up all the existing jurisprudence about granting leave to appeal – see e.g., Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200; and Wan v Australian Industrial Relations Commission (2001) 116 FCR 481.
2328. Subject to the Appellant demonstrating an arguable case of appealable error, it is intended that FWA should have a broad discretion as to the circumstances in which it can grant permission to appeal. Some examples of considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include:
● that the decision is attended with sufficient doubt to warrant its reconsideration; and
● that substantial injustice may result if leave is refused.
2329. However, subclause 604(2) requires FWA to grant permission to appeal the decision if FWA is satisfied that it is in the public interest to do so.”
[39] In Wan the Full Federal Court made the following observation regarding the operation of s.45 of the then Workplace Relations Act 1996 (the WR Act), a statutory predecessor to s.604:
“Section 45 does not specify grounds for granting leave to appeal other than in the special case referred to in s 45(2). As we have previously observed, grounds traditionally adopted in granting leave have included considerations such as whether the decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice may result if leave is refused. These “grounds” should not be seen as fetters upon the broad discretion conferred by s 45(1), but as examples of circumstances which will usually be treated as justifying the grant of leave. It will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error.” 32
[40] Given the similarities between s.45 of the WR Act and s.604 of the Act the observations in Wan remain apposite.
[41] The Appellant submits that permission to appeal should be granted where, as here appellable error is demonstrated or an arguable case of appealable error existed. The Respondent took a contrary position. As is apparent from our reasons we have concluded that there was an appellable error at first instance. The error would result in preventing the Appellant from doing that which it is permitted to do under the Agreement. It is appropriate that permission to appeal be granted.
Disposition of appeal
[42] We grant permission to appeal, we uphold the appeal and quash the decision of Commissioner Ryan in [2013] FWC 9055.
Rehearing
[43] Upon the rehearing of the dispute, for the reasons given earlier in this decision, we have decided that on a proper construction of cl.13.6(b) and cl.42.5(c) of the Agreement, the Appellant may proceed to alter the starting and finishing times of shifts to be worked by the patrol officers in accordance with cl.13.6(b) of the Agreement and is not prevented from doing so by cl.42.5(c).
[44] An order giving effect to a decision is issued separately in PR549017.
DEPUTY PRESIDENT
Appearances:
M. Folett of Counsel for the Appellant
D. Vroland and J. Wieladek for the AMWU
Hearing details:
Melbourne.
2014.
12 February
1 AE887787
3 Ibid at [39]
4 (2000) 203 CLR 194
5 Ibid at 204-205
6 Pawel v AIRC (1999) 94 FCR 231.
7 [2013] FWC 9055 at [1]
8 Ibid at [4]
9 Ibid at [5]-[15]
10 Ibid at [27]-[34]
11 Ibid at [35]-[36]
12 Ibid at [37]-[38]
13 Ibid at [39]
14 (2006) 153 IR 426
15 Ibid at 438
16 (1996) 66 IR 182
17 Ibid at 184
18 See Swire Cold Storage Pty Ltd v TWU [2008] AIRCFB 397 at [29] and AMWU v Silcar Pty Ltd [2011] FWAFB 2555 at [11]
19 (2005) 222 CLR 241
20 Ibid at 253 per Gummow, Hayne and Heydon JJ
21 Ibid at 270
22 Ibid at 283
23 Ibid
24 (2006) 153 IR 426 at 440
25 (1982) 149 CLR 337
26 Ibid at 352
27 [2011] HCA 45
28 See Macquarie Concise Dictionary, Fifth Edition
29 See for example AB180
30 [2013] FWC 9055 at [36]
31 Transport Workers' Union of Australia v Qantas Airways Ltd (2008) 176 IR 101 at 105
32 (2001) 116 FCR 481 at [30]
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