s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

s.218A - Application to vary an agreement to correct or amend errors, defects or irregularities

APA TRANSMISSION PIPELINES (WA, NT, QLD & MOOMBA) ENTERPRISE AGREEMENT 2022

Application to vary an enterprise agreement to remove ambiguity or uncertainty - Application to vary an enterprise agreement to correct or amend errors, defects or irregularities.

• [1] This decision concerns two applications relevant to an enterprise agreement known as the APA Transmission Pipelines (WA, NT, QLD & Moomba) Enterprise Agreement 2022[1] (2022 Agreement).

• [2] The 2022 Agreement came into operation from 8 June 2022[2] and has a nominal expiry date of 1 June 2026.[3]

[3] The employer covered by the Agreement, APT Management Services Pty Ltd (APT), which is part of the APA Group (APA), has made applications pursuant to s.217 and s.218A of the Fair Work Act 2009 (Cth) (FW Act) to remove ambiguity or uncertainty and/or to correct or amend obvious errors, defects or irregularities.

[4] By the applications, APT contends there is ambiguity, uncertainty, and/or obvious errors, defects or irregularities in the interaction between clauses that permit ordinary hours to be an average of 38 hours per week but not exceeding 152 hours in 28 days, and clauses that permit ordinary hours to be an average of 38 hours per week over the Work Cycle. The heart of the issue is whether a "Work Cycle" can be spread over a period exceeding 152 hours over in 28 consecutive days.

[5] APT seeks variations to the 2022 Agreement to make it clear that ordinary hours can be an average of 38 hours per week over a Work Cycle that is not limited to a maximum of 152 hours in 28 consecutive days.

[6] The Australian Workers' Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively referred to as "the Unions") oppose the applications.

[7] Both applications were heard together on 10 April 2025. APT was granted permission to be represented by a lawyer, as I was satisfied that the precondition in s.596(2)(a) of the FW Act had been met and that it was appropriate to exercise my discretion to grant permission. APT was represented by Mr A Denton of Counsel. The AWU was represented by its National Legal Officer, Mr S Miller. The CEPU was represented by its National Legal Counsel Ms C Taylor.

[8] The following materials were tendered into evidence:

• Affidavit of Peta Bissell, employed by the APA Group as General Manager Employee Relations and Strategic Projects (Exhibit A2);

• Affidavit of Robert Krueger, employed by APT as Manager, Integrated Operations Centre (IOC) (Exhibit A3);

• Reply Affidavit of Robert Krueger (Exhibit A4);

• Affidavit of Liam Smith, employed by APT as General Manager Asset Management (Exhibit A5);

• Reply Affidavit of Liam Smith (Exhibit A6);

• Witness statement of Matthew Slaven, employed by APT as a System Controller at the IOC (Exhibit R1); and

• Witness statement of Aaron Smith, employed by APT as a System Controller at the IOC (Exhibit R2).

[9] Each of the above persons identified in paragraph [8] were required for cross examination.

[10] APT also sought to tender a document titled "Applicant's Objections to Evidence". That document was not admitted into evidence but has been considered as a submission and was marked MFI 1.

[11] Clause 2 of the 2022 Agreement is titled "Definitions and Interpretation" and includes the following defined terms:

All-Purpose Rate of Pay is calculated for a week using the All-Purpose Hourly Rate multiplied by the Ordinary Hours;

Average Pay means the calculated annual pay divided by 26.1 and paid fortnightly. It includes the All-Purpose Rate of Pay and where applicable:

a) Operations Allowance

b) Travel Field Allowance for FIFO/DIDO Employees

c) Regional Market Allowance

d) Overtime Allowance

e) Overtime in addition to the rostered hours that is not included in the Operations Allowance

f) Hours worked in addition to the Overtime Allowance once those allowed hours have been utilised

g) Or any incident based allowances or payments (e.g. standby, higher duties, travel);

Day Worker means an Employee engaged to work within the spread of Ordinary Hours Monday to Friday;

Operations Allowance means payment for all penalty rates and shift loadings arising from working rostered hours as a shift worker. Each roster has its own operations allowance that is calculated based on the work arrangements for that roster expressed as a percentage of All Purpose Rate of Pay;

a) for day workers are to be an average of 38 hours per week but not exceeding 152 hours in 28 days.

b) for shift workers are to average 38 hours per week inclusive of meal breaks, over a period that must not exceed 152 hours in 28 days;

a) Continuous Shift Worker will apply when work is carried out with consecutive shifts throughout the 24 hours of the seven days of the week without interruption. Ordinary Hours for continuous shift workers will be an average of 38 Ordinary Hours per week inclusive of meal breaks and must not exceed 152 hours in 28 consecutive days.

b) Non-Continuous Shift Worker will apply when shifts are not continuous. The Ordinary Hours of such shift workers must not exceed:

i. 38 hours within a period not exceeding seven consecutive days;

ii. 76 hours within a period not exceeding 14 consecutive days;

iii. 114 hours within a period not exceeding 21 consecutive days; or

iv. 152 hours within a period not exceeding 28 consecutive days.

Work Cycle means the roster or pattern of work implemented in a particular work location.

[12] Clause 7.1 of the 2022 Agreement states:

7.1 This agreement shall incorporate the provisions of the Gas Industry Award 2020 or as amended from time to time, provided that where there is any inconsistency between the agreement and the award, the more favourable provision for the employee/s shall prevail.

[13] Clause 12 of the 2022 Agreement sets out the employment categories and defines a permanent full-time employee and a permanent part-time employee as follows:

A permanent full-time Employee is an Employee who is engaged to work an average of 38 Ordinary Hours per week.

a) A permanent part-time Employee is an Employee who is engaged to work a regular pattern of hours that are less than 38 Ordinary Hours per week. The Ordinary Hours will not be fewer than four (4) consecutive hours per day or shift. Extra hours worked up to 38 hours will be paid at the Average Pay.

b) Part-time Employees shall accrue and/or receive entitlements under the Agreement on a prorate basis.

1. Public holiday pay is only payable where the rostered regular pattern of employment includes a public holiday.

[14] Clause 15 of the 2022 Agreement is titled "Hours of Work" and relevantly states:

15.1 All permanent full-time Employees shall work an average of 38 Ordinary Hours per week in accordance with local arrangements. As a consequence, all leave and entitlements will be based on a 38-hour week.

15.2 Subject to the preceding paragraph, the spread of hours, hours per week and days upon which Ordinary Hours of work may be worked may be altered as to all or a section of Employees, by agreement between the Employer, the Employees and the Union Representative nominated by the Employee/s.

15.3 The usual daily commencing times and usual daily finishing times of Ordinary Hours of work in a section(s) shall be as arranged by agreement between the Employer, the Employees of the particular section or sections involved, and the Union Representative nominated by the Employee/s.

[15] Clause 17 of the 2022 Agreement is titled "Shift Work" and relevantly states:

17.1 The Ordinary Hours worked by a shift worker shall be an average of 38 Ordinary Hours per week over the relevant Work Cycle.

17.2 Shifts shall be worked in accordance with a roster agreed to by the majority of Employees at each work location prior to implementation.

[16] Clause 18 of the 2022 Agreement deals with wages. Clause 18.3 states:

b) Employees shall be paid by electronic funds transfer into one or more accounts (maximum 6) nominated by the Employee.

1. The Employer reserves the right to request an Employee to nominate an alternate financial institution where it is not reasonably practical to transfer funds to the institution originally nominated by the Employee.

d) The Employer shall provide a detailed pay slip to each Employee in accordance with the Act and any additional requirements in this Agreement.

e) Where an Employee is terminated from employment before the recognised payday, all due entitlements and salary shall be paid within 7 days by electronic funds transfer.

[17] Clause 27 of the 2022 Agreement deals with annual leave. Clause 27.10 states:

Annual leave will be deducted at the number of Ordinary Hours worked per day according to the Employee's shift roster. The current shift rosters worked under this Agreement and the corresponding Ordinary Hours per day include:

[18] APT is part of the APA Group which is the owner and operator of a large portfolio of gas, renewable energy and electricity assets located throughout Australia, including:

• 15,000 kilometres of natural gas pipelines throughout Queensland, New South Wales, South Australia, Victoria, Western Australia and the Northern Territory;

• Liquified natural gas storage and processing facilities;

• Investments in various energy infrastructure assets.

[19] The 2022 Agreement relates to APA's gas transmission business and covers APT and its employees who are employed in Transmission Operations in Western Australia, the Northern Territory, Queensland, and at Moomba in South Australia. The 2022 Agreement also covers employees employed in specified classifications at APA's Integrated Operations Centre (IOC).

[20] The underpinning modern award is the Gas Industry Award 2020 (Gas Award). The predecessor enterprise agreements that have covered and applied to the cohort of employees engaged in Transmission Operations since the commencement of the FW Act are:

• APA Transmission Pipelines National Workplace Agreement 2008-2011;

• APA Transmission Pipelines (VIC, SA, WA, NT and QLD) Enterprise Agreement 2011-2014;

• APA Transmission Pipelines (WA, NT, QLD and Moomba) Enterprise Agreement 2015 (2015 Agreement); and

• APA Transmission Pipelines (WA, NT, QLD and Moomba) Enterprise Agreement 2018 (2018 Agreement).

[21] Under the 2022 Agreement, various rostering arrangements (or Work Cycles) have been implemented for Shift Workers. Those arrangements are identified at clause 27.10 of the 2022 Agreement. All of the Work Cycles, except for the IOC roster, average hours over a period of 28 consecutive days or less.

[22] The IOC is APA's centralised pipeline control centre located in Brisbane. The IOC opened in 2015 and provides gas storage, transportation, and energy solutions, as well as access to the APA grid for short term capacity sales, and engineering oversight of APA's pipeline and energy network. The IOC operates continuously 24 hours per day every day.

[23] There are approximately 65 employees who work at the IOC, approximately 30 of whom are covered by the 2022 Agreement. Controllers make up the largest component of employees working at the IOC. Controllers are responsible for monitoring, reporting on, and controlling APA's pipeline and electrical distribution assets. For the purposes of the 2018 Agreement and the 2022 Agreement, Controllers are Continuous Shift Workers.

[24] From October 2017, the IOC has operated a Work Cycle which is known as the Sportsman's Roster. The Sportsman's Roster operates over a 12-week period (or 84 consecutive days) and provides employees with periods of 4 or 5 consecutive days of work interspersed with periods of 4, 5, 9 or 10 consecutive days of no work. The shifts are 12.5 hours in duration including shift handover and breaks. Over the 12-week roster cycle, the employees work an average of 38 hours per week.

[25] Irrespective of the Work Cycle that applies at each work location, Shift Workers are paid Average Pay each fortnight. This means that Shift Workers are paid for more hours than they work in some pay periods and are paid for less hours than they work in other pay periods.

[26] There was some dispute as to whether a majority of employees had agreed to the Sportsman's Roster at the time it was implemented - as is required by clause 16.2 of the 2015 Agreement. This was raised during bargaining for the 2018 Agreement. While it is not necessary for me to determine this point, it is sufficient to note that there was no dispute that the Controllers had agreed to the implementation of the Sportsman's Roster by the time the 2018 Agreement commenced.

[27] Bargaining for the 2018 Agreement commenced in early to mid-2018.

• [28] Mr Kruegar participated in bargaining for the 2018 Agreement as one of the management representatives for issues that were directly relevant to the IOC.[4]

• [29] Mr Kruegar stated that one issue raised by Mr A Smith and Mr Slaven was the need to formalise the roster arrangement at the IOC. Mr Kruegar stated that the bargaining representatives received an email from Mr A Smith on 4 June 2018 which included an extract of clause 16 of the 2015 Agreement and an extract of the Log of Claims referring to the current IOC roster and that it had not been "mutually agreed" in accordance with clause 16.2 of the 2015 Agreement. Below those extracts, Mr Smith wrote: "As discussed, we are not seeking to change rosters, just solidify current practices."[5]

• [30] Mr Kruegar stated that the continued use of the Sportsman's Roster was agreed during bargaining and was communicated to the relevant employees through a document known as the IOC Control Operations Governance Document (Governance Document).[6] The purpose of the Governance Document is to "capture current practices and procedures within the IOC."[7]

• [31] Mr Kruegar stated that during bargaining for the 2018 Agreement there was no claim by APT, the employees, or the Unions to restrict the period over which ordinary hours could be averaged or affect existing rosters in any way, to deviate from the system of average pay over a Work Cycle, or to otherwise change the rosters, the remuneration or pay structure (aside from increases), and no action was taken to budget for any such changes.[8]

• [32] Mr Krueger stated that any change to rosters would require a change to the Operations Allowance (as specified in Appendix E of the 2018 Agreement) which was calculated on the basis that Controllers were working in accordance with the Sportsman's Roster. Mr Kruegar stated that the Sportsman's Roster involves regular and predictable periods where employees will exceed 152 hours in 28 consecutive days and the usual way to compensate for this is to include a component within the Operations Allowance. Alternatively, the employees would need to make claims for overtime each time they exceeded that threshold.[9]

• [33] Mr Kruegar stated that he understood there was a common intention between APT and the Controllers that under the 2018 Agreement, Controllers would continue to work in accordance with the Sportsman's Roster and receive Average Pay.[10]

• [34] Under cross examination Mr Kruegar accepted that there was ultimately a claim to change the definition of Shift Worker to align it with the Gas Award, which APT agreed to.[11]

• [35] However, in re-examination Mr Kruegar stated that despite the change to the definition of Shift Worker, there was no discussion that this would affect the payment of overtime or the way in which workers would be rostered and that the employee bargaining representatives were only seeking to solidify current practices.[12]

• [36] Mr Slaven was an employee bargaining representative for the 2018 Agreement.[13]

• [37] Mr Slaven stated that the issue of IOC Control Room Supervisors working in excess of 91 hours per week in the IOC was raised during bargaining for the 2018 Agreement. Mr Slaven stated that although IOC Control Room Supervisors were not covered by an enterprise agreement, the IOC representatives and employee bargaining representatives required some form of "protection" against APT implementing, without majority support, similar roster patterns for Controllers.[14]

• [38] Mr Slaven stated that APT had advised the employee bargaining representatives that there were other enterprise agreements within the APA Group which contain provisions that ordinary hours must not exceed 152 hours in 28 consecutive days. Mr Slaven stated that at a bargaining meeting on 3 and 4 October 2018, it was agreed to implement the same definition in the 2018 Agreement. The minutes of that meeting record the following: "Shift Worker - change to 28 days as per the Award - agreed."[15]

• [39] Mr Slaven stated that a draft agreement was circulated on 9 November 2018, and the employee bargaining representatives conducted a review. After reviewing the draft agreement, Mr Slaven sent correspondence to APT advising, amongst other things, that the definition of Ordinary Hours should read: "Not Exceed 152 hours in 28 consecutive days." Mr Slaven stated that APT agreed to this amendment and confirmed it was actioned in correspondence sent to the employee bargaining representatives on 23 November 2018.[16]

• [40] Mr Slaven stated that it was recognised by the "affected bargaining employees" that the introduction of the Shift Worker and Ordinary Hours definitions would trigger overtime for working the compressed roster.[17]

• • Agreed that the "current practices" referred to in Mr A Smith's email of 4 June 2018 included working under the Sportsman's Roster;[18]

• • Confirmed that the "affected bargaining employees" were himself and Mr A Smith and that the change to the Shift Worker and Ordinary Hours terms would trigger overtime payments for employees working the Sportsman's Roster;[19]

• • Agreed that the calculation of the Operations Allowance is based on ordinary hours over the Work Cycle;[20]

• • Agreed that he did not factor any overtime component into the calculation for the Operations Allowance. Mr Slaven stated that this was because overtime worked in excess of 152 hours in 28 consecutive days is not something that is added into the Operations Allowance and that there is flexibility to move some shifts around within the Sportsman's Roster;[21]

• • Stated that employees who work in excess of 152 hours in 28 consecutive days are eligible to claim overtime;[22]

• • Agreed that he and Mr A Smith drafted the Governance Document in August 2018 before it was approved by Mr Krueger;[23] and

• • Agreed that following the commencement of the 2018 Agreement, he has not made any claim for overtime in relation to working in excess of 152 hours in 28 consecutive days.[24]

• [42] Mr A Smith was an employee bargaining representative for IOC Controllers for the 2018 Agreement.[25]

[43] Mr A Smith stated that during bargaining for the 2018 Agreement, the employees sought "protection" against the compression of work hours. Mr A Smith stated there were two reasons for this:

• That the IOC Control Room Supervisors were working an arrangement of over 91 hours work per week; and

• • That the Sportsman's Roster had been implemented in 2017 without majority agreement, as required by clause 16.2 of the 2015 Agreement.[26]

• [44] Mr A Smith stated that the protection sought - in the form of limiting ordinary hours to a maximum of 152 hours in 28 consecutive days - was to place a "slight penalty" on excess compression of work hours as well as aligning the 2018 Agreement with other APA enterprise agreements and the Gas Award.[27]

• [45] Mr A Smith stated that this provision was agreed to at a bargaining meeting held on 3 and 4 October 2018. The minutes of that meeting record the following: "Shift Worker - change to 28 days as per the Award - agreed."[28]

• [46] Mr A Smith stated that a draft agreement was circulated on 9 November 2018, and the employee bargaining representatives conducted a review. In reviewing the draft agreement, Mr A Smith stated that it was identified that the definition of Ordinary Hours did not align with the agreed change to the definition of Shift Worker. Mr A Smith stated that on 19 November 2018, Mr Slaven sent correspondence to APT advising, amongst other things, that the definition of Ordinary Hours should state: "Not exceed 152 hours in 28 consecutive days."[29]

• [47] Mr A Smith stated that on 23 November 2018, APT provided a response confirming the amendment to the definition of Ordinary Hours has been actioned. APT also circulated an updated draft agreement reflecting the amendment as follows:[30]

Ordinary Hours for day workers are to be an average of 38 hours per week but not exceeding 152 hours in 28 days. Ordinary hours for shift workers are to average 38 hours per week inclusive of meal breaks, over a period that must not exceed 152 hours in 28 days; 12 months;

a) Continuous Shift Worker will apply when work is carried out with consecutive shifts throughout the 24 hours of the seven days of the week without interruption. Ordinary hours for continuous shift workers will be an average of 38 ordinary hours per week inclusive of meal breaks and must not exceed 152 hours in 28 consecutive days.

b) Non-Continuous Shift Worker will apply when shifts are not continuous. The ordinary hours of such shift workers must not exceed:

i. 38 hours within a period not exceeding seven consecutive days;

ii. 76 hours within a period not exceeding 14 consecutive days;

iii. 114 hours within a period not exceeding 21 consecutive days; or

iv. 152 hours within a period not exceeding 28 consecutive days.

• [48] Mr A Smith stated that he considered the amendments to the definition of Ordinary Hours and Shift Worker in the 2018 Agreement were consistent with the Gas Award, were mutually beneficial to APT and the employees, and would protect employees against excessive compression of hours of work.[31]

• [49] Mr A Smith stated that prior to voting on the 2018 Agreement, APT propagated an explanatory presentation in which APT referred to the definitions in the proposed agreement and stated that they "reflect the intent and application of the clause."[32]

• [50] Mr A Smith stated that since the meeting on 3 and 4 October 2018 it "has always been [his] understanding that the protection supplied by the Shift Worker and Ordinary Hours definition is by applying overtime to hours that exceed 152 hours in 28 consecutive days" and that he propagated this to the employees as a 'protection' against compression of hours prior to voting. [33]

• • Stated that "our issue all the way along" was that there be mutual agreement as to the roster to be worked by Controllers "prior to implementation" of that roster;[34]

• • Stated that the "protection" the employees were seeking was to put in place a penalty so that there was "no further compression" in the form of the roster that was being worked by IOC Control Room Supervisors;[35]

• • Agreed that the threshold of 152 hours in 28 consecutive days would be exceeded at some point when working the Sportsman's Roster;[36] and

• • Agreed that following the commencement of the 2018 Agreement, he has not made any claim for overtime in relation working in excess of 152 hours in 28 consecutive days. Although Mr A Smith stated that he raised it with Mr Kruegar and was advised that the Operations Allowance is all encompassing.[37]

[52] Bargaining for the 2022 Agreement commenced in or around early-December 2020.

• [53] Mr Kruegar participated in bargaining for the 2022 Agreement as one of the management representatives for issues that were directly relevant to the IOC.[38]

• [54] Mr Kruegar stated that the focus for bargaining for the 2022 Agreement was on remuneration and that he does not recall any claim relating to the averaging of hours over a Work Cycle, or the payment of Average Pay, except for a change to the Operations Allowance to account for the Christmas Eve public holiday in Queensland. Mr Kruegar stated that this change to the Operations Allowance was the subject of extensive discussions.[39]

• [55] Mr Kruegar stated that the Operations Allowance includes a component for rostered overtime and for Controllers was calculated on the basis that they work in accordance with the Sportsman's Roster.[40]

• [56] Mr L Smith commenced employment with APA shortly before bargaining for the Agreement commenced and participated in bargaining for the 2022 Agreement as one of the management representatives.[41]

• [57] Mr L Smith stated that the employee log of claims did not raise any issue in relation to the averaging of ordinary hours, nor was there any discussion about this during the bargaining meetings.[42]

• [58] Mr L Smith stated that the 2022 Agreement was approved on the third occasion it was put to a vote following a process of interest-based bargaining facilitated by the Fair Work Commission.[43]

• [59] Mr L Smith stated that one of the main issues was the quantum of the Operations Allowance because of the introduction of an additional public holiday in Queensland. Mr L Smith stated he and Mr Slaven both undertook calculations to settle the Operations Allowance, resulting in the allowance being increased to 37%. Mr L Smith stated that there was no component included in the Operations Allowance to compensate for overtime where an employee works more than 152 hours in 28 consecutive days, nor was there any attempt or claim to include such a component.[44]

• [60] Mr L Smith stated the issues of averaging ordinary hours over a Work Cycle and Average Pay arrangements were not raised throughout the bargaining period, the interest-based bargaining process facilitated by the Fair Work Commission, or the period leading up to the vote, including the explanation of the 2022 Agreement.[45]

• [61] Mr L Smith acknowledged that it was possible to remunerate employees for time worked in excess of 152 hours in 28 consecutive days separately to the Operations Allowance. However, he stated that would not make sense when the purpose of the Operations Allowance is to include a component for regular overtime.[46]

• • Accepted that the Log of Claims for the 2022 Agreement included claims for a "discussion of Adhoc Overtime Versus Over-Cycle Overtime" and "changing the "39 to a 35-hour week to provide a better work/life balance";[47]

• • Stated that the explanation of the 2022 Agreement involved taking employees through the terms that had changed from the 2018 Agreement and answering questions about the terms that did not change;[48]

• • Stated the purpose of the Operations Allowance is to provide consistent pay to the employees. Mr L Smith stated that the Operations Allowance includes payment for every public holiday that will occur in a Work Cycle;[49]

• • Stated that there was never a position advanced that hours worked in excess of 152 hours in 28 consecutive days was considered overtime and no adjustment or calculation was made to the Operations Allowance to account for that;[50]

• • Stated that Mr Slaven and himself undertook the calculation of the Operations Allowance, and that formed the basis for his evidence in his statement in reply that the parties did not intend for overtime to apply for hours worked in excess of 152 hours in 28 consecutive days. Mr L Smith stated that following the calculation of the Operations Allowance he presented the calculation to the bargaining representatives and there were no questions or challenge to the calculation relative to the issue of overtime for hours worked in excess of 152 hours in 28 consecutive days;[51] and

• • Acknowledged that overtime can be paid separately to the Operations Allowance, but there has never been a practice or claim that overtime is payable for hours worked in excess of 152 hours in 28 consecutive days.[52]

• • Stated that the calculation of the Operations Allowance for the 2022 Agreement was complex due to the additional public holiday operating from 12pm to 12am and how it interacted with the shift patterns in the Sportsman's Roster;[53] and

• • Stated that if it was agreed or held that overtime applied to hours worked in excess of 152 hours in 28 consecutive days, APT would have built that into the Operations Allowance.[54]

• [64] Mr Slaven was an employee bargaining representative for the 2022 Agreement.[55]

• [65] Mr Slaven stated that bargaining for the 2022 Agreement included a period of interest-based bargaining before the Fair Work Commission which ultimately lead to a variation of the 2022 Agreement to amend or insert clauses dealing with the definition of Residential Employee, the Technical Specialist Allowance, the Regional Living Allowance, and the FIFO/DIDO Allowance.[56]

• • Agreed that following the commencement of the 2022 Agreement, he has not made any claim for overtime in relation working in excess of 152 hours in a 28 consecutive day;[57]

• • Agreed that he prepared the calculation of the IOC Operations Allowance, including developing the spreadsheet calculator;[58] and

• • Agreed that he did not factor into the calculation of the Operations Allowance a component for overtime for hours worked in excess of 152 hours in 28 consecutive days.[59]

• [67] Mr A Smith was an employee bargaining representative for the 2022 Agreement.[60]

• [68] Mr A Smith stated that as part of bargaining for the 2022 Agreement, clause 7 was added which states:[61]

This agreement shall incorporate the provisions of the Gas Industry Award 2020 or as amended from time to time, provided that where there is any inconsistency between the agreement and the award, the more favourable provision for the employee/s shall prevail.

• [69] Mr A Smith stated that the explanatory document circulated by APT contained the following explanation for clause 7.1:[62]

Clause added to specifically reference that if there are inconsistences between the Agreement, the Gas Industry Award and/or the National Employment Standards the more favourable provision to the Employees will prevail.

• [70] Mr A Smith stated that averaging hours over a Work Cycle is the "in place operational arrangement and is how the [2022 Agreement] currently operates and has previously been interpreted and understood."[63]

• [71] Mr A Smith stated that he did make any claims for overtime on the basis that he worked in excess of 152 hours in 28 consecutive days following the commencement of the 2022 Agreement because he was waiting for the completion of the pay audit (see below) to be completed. However, once the pay rules were developed for the pay audit, he made two claims.[64] These claims were made on 20 August 2024 and 1 December 2024 and both were rejected. Both of these claims were submitted by email to his team leader with the subject line: "BEWARE: New Time sheet submitted that is not current practice" and in both claims Mr A Smith states: I discovered that hours in excess of 152 in 28 days have now been interpreted as to be paid.[65] Mr A Smith stated that he placed "cheeky" warnings on that correspondence so that the claims were not automatically approved and would be referred to upper management.[66]

[72] It is relevant to briefly set out the circumstances that lead to the applications being made.

[73] In or about March 2020, some employees challenged APA's interpretation of the Public Holiday On-Call Payment under the 2018 Agreement and the corresponding provision under other APA Group enterprise agreements.

[74] This ultimately led to an audit of employee entitlements under all enterprise agreements that applied across the APA Group, including the 2015 Agreement and the 2018 Agreement.

[75] The pay audit covered the period from 1 October 2015 to 30 September 2022. A further top-up phase covered the period of 1 October 2022 to 31 March 2024.

[76] As part of the pay audit, pay rules were developed to permit a forensic accounting process to determine whether employees had been correctly remunerated. In developing the pay rules and seeking external support, APA formed the view that there were two possible constructions of the 2022 Agreement relevant to the proceedings before me:

• consistent with existing practice, the agreement reached with employees pursuant to clauses 15.1, 15.2 and 15.3 of the 2022 Agreement, and consistent with clause 17.1, it is permissible for APA to average ordinary hours for Shift Workers over an agreed Work Cycle. APA have referred to this as the Averaging Over a Work Cycle Approach; or

• • consistent with the definitions in Clause 2 of the 2022 Agreement, the maximum averaging period permissible is 152 hours in a period not exceeding 28 consecutive days for Shift Workers. APA have referred to this as the Averaging Over a Defined Period Approach.[67]

• [77] For the purposes of the pay audit, APA determined to apply the Averaging Over a Defined Period Approach. In making this determination, APA had regard to this approach being the more favourable construction for employees and that it had voluntarily reported the matter to the Fair Work Ombudsman. However, Mr A Smith stated that this is not his understanding of how the 2022 Agreement operates or has operated.[68]

• [78] Outside of the pay audit, APA continues to apply the Averaging Over a Work Cycle Approach, which Mr A Smith says is the "in place operational arrangement and is how the [2022 Agreement] currently operates and has previously been interpreted and understood."[69]

• [79] During the interested-based bargaining process, there were attempts by APA and the AWU to reach agreement on the approach to apply. This included offers by the employee bargaining representatives to include a component in the Operations Allowance for hours worked in excess of 152 hours in 28 consecutive days over the course of the Sportsman's Roster.[70] However, attempts to reach agreement were unsuccessful and this resulted in APT making the applications.

• [80] Finally, I note Mr Slaven has agitated a range of wage and entitlement issues over the period since the commencement of the 2018 Agreement, most of which are not relevant to the proceedings before me. However, on 8 February 2023, Mr Slaven sent correspondence to APT setting out 7 questions or scenarios raised by employees that related to the 2015 Agreement, 2018 Agreement, and the 2022 Agreement and asked whether those matters were within the scope of the Pay Audit. None of the scenarios related to the issue of Ordinary Hours for Shift Workers.[71] On 27 February 2023, Mr Slaven sent further correspondence to APT, which set out the definition of Ordinary Hours and Shift Worker in the 2018 Agreement and 2022 Agreement and included the following text:[72]

The enquiry relates to the number of ordinary hours completed when shift workers are on roster. Any roster that cycles longer than 28 days may be affected

Could you please include the below in the Remuneration Review?

[81] APT seeks that the Commission vary the 2022 Agreement by inserting (underlined) or deleting (strike-through) wording in several provisions as follows:

(i) The definition of All-Purpose Rate in clause 2:

All-Purpose Rate of Pay is calculated for a week using the All-Purpose Hourly Rate multiplied by the average Ordinary Hours worked each week over the Work Cycle;

Average Pay means the calculated annual pay divided by 26.1 and paid fortnightly based on the average Ordinary Hours worked each fortnight over the Work Cycle. It includes the All-Purpose Rate of Pay and where applicable:

a) Operations Allowance

b) Travel Field Allowance for FIFO/DIDO Employees

c) Regional Market Allowance

d) Overtime Allowance

e) Overtime in addition to the rostered hours that is not included in the Operations Allowance

f) Hours worked in addition to the Overtime Allowance once those allowed hours have been utilised

g) Or any incident based allowances or payments (e.g. standby, higher duties, travel);

(iii) The definition of Ordinary Hours in clause 2:

a) for day workers are to be an average of 38 hours per week but not exceeding 152 hours in 28 days (pro rata for part weeks) over a Work Cycle.

b) for shift workers are to average 38 hours per week (pro rata for part weeks) inclusive of meal breaks, over a Work Cycle period that must not exceed 152 hours in 28 days;

(iv) The definition of Shift Worker in clause 2:

a) Continuous Shift Worker will apply when work is carried out with consecutive shifts throughout the 24 hours of the seven days of the week without interruption. Ordinary Hours for continuous shift workers will be an average of 38 Ordinary Hours per week over a Work Cycle inclusive of meal breaks and must not exceed 152 hours in 28 consecutive days.

b) Non-Continuous Shift Worker will apply when shifts are not continuous. The Ordinary Hours of such shift workers must not exceed:

i. 38 hours within a period not exceeding seven consecutive days;

ii. 76 hours within a period not exceeding 14 consecutive days;

iii. 114 hours within a period not exceeding 21 consecutive days; or

iv. 152 hours within a period not exceeding 28 consecutive days; or

v. An average of 38 hours per week over a Work Cycle.

a) A permanent part-time Employee is an Employee who is engaged to work a regular pattern of hours that are less than an average of 38 Ordinary Hours per week. The Ordinary Hours will not be fewer than four (4) consecutive hours per day or shift. Extra hours worked up to an average of 38 hours per week (pro rata for part weeks) over the Work Cycle will be paid at the Average Pay.

a) Employees will be paid fortnightly in accordance with Average Pay (Clause 2 Definitions).

[82] Section 217 of the Act provides as follows:

217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(c) an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

• [83] It is well established that the Commission's consideration of an application under s.217 involves two steps. The first step is to identify whether there is ambiguity or uncertainty in the enterprise agreement under consideration. This is a jurisdictional pre-requisite to the exercise of discretion to vary the instrument. If an ambiguity or uncertainty is identified, the second step involves a consideration of whether the Commission should exercise its discretion to vary the agreement to remove the ambiguity or uncertainty.[73]

• [84] The principles relevant to identifying ambiguity or uncertainty were considered by the Full Court of the Federal Court of Australia in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union,[74] (Bianco Walling).

• [85] In Monash University T/A Monash University (Re Monash)[75], Bell DP distilled the relevant principles as follows:

[85] As to the 'first step', the following principles are discernible from the authorities:

1. The process of ascertaining ambiguity or uncertainty in an enterprise agreement is "distinct" from the process of construction, the latter of which involves determining the "true meaning" of a provision: Bianco Walling, [66] - [67].

1. Ambiguity exists when a provision in an enterprise agreement is capable of more than one meaning: Bianco Walling, [67].

1. Ambiguity may be apparent on the face of the document or may only become apparent when extrinsic evidence is adduced: Bianco Walling, [67].

1. A provision may be ambiguous even though capable of interpretation: Bianco Walling, [67].

1. Evidence of the parties "common intention" and the history of the impugned provisions are matters the Commission is permitted to have regard to in ascertaining whether ambiguity or uncertainty exists: Bianco Walling, [68].

1. The mere existence of rival contentions as to the meaning or application of a provision or provisions in an enterprise agreement is unlikely to be sufficient to indicate ambiguity or uncertainty for the purposes of s.217: Bianco Walling, [70].

1. And while the mere existence of rival contentions is insufficient to permit a finding of ambiguity or uncertainty, the Commission "will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention" (original emphasis): Bianco Walling, [70].

1. The words "ambiguity" and "uncertainty" are not synonymous: Bianco Walling, [75].

"There may, for example, be uncertainty in an enterprise agreement even when its terms are not ambiguous. The uncertainty may arise from the application of the unambiguous terms to a given set of circumstances. The distinction between patent ambiguity (linguistic ambiguity) and latent ambiguity (ambiguity in application) provides an illustration by analogy" (citations omitted).

1. A form of "uncertainty" can extend to the common law analogy of uncertainty, where a provision might be found to be void, because no definite meaning can be put on that provision. However, "uncertainty" in s.217 is not so limited: Bianco Walling, [77].

• [86] The threshold for finding ambiguity or uncertainty is not a high one.[76]

Is there Ambiguity or Uncertainty in the 2022 Agreement?

[87] Applying the above principles, I am satisfied that the 2022 Agreement is ambiguous and uncertain for the following reasons.

[88] Although the definitions of Ordinary Hours and Shift Worker state that hours of work are to be an average of 38 hours per week not exceeding 152 hours in 28 consecutive days, clauses 15.1 and 17.1 provide that ordinary hours are to be an average of 38 hours per work in accordance with local arrangements or over the relevant Work Cycle. Furthermore, clause 15.2 of the 2022 Agreement provides that the hours per week may be altered by agreement between the employer and a section of employees.

[89] There is no dispute that from 2018, the Sportsman's Roster was agreed between APT and the Controllers. There is also no dispute that over the course of the Sportsman's Roster, Controllers will work more than 38 hours in some weeks and less than 38 hours in others.

[90] Having regard to these matters I accept the submissions of APT and find the Agreement can be read in more than one way and is capable of more than one meaning. On one view, the local arrangements and/or the Work Cycle agreed to under clauses 15.1, 15.2 or 17.1 are subject to the limit of 152 hours in 28 days set out in the clause 2 definitions. On another view, any local arrangements agreed to under clauses 15.1, 15.2, or implemented as part of the relevant Work Cycle under clause 17.1 prevail over the definitions in clause 2 and are not subject to the limit of 152 hours in 28 days, save that any arrangement is to result in an average of 38 hours per week.

[91] The ambiguity and uncertainty in the 2022 Agreement are further exposed by the extrinsic evidence relevant to the amendment of the definitions of Ordinary Hours and Shift Worker in bargaining for the 2018 Agreement, and the way in which the 2018 Agreement and 2022 Agreement operated thereafter. I deal with this further below.

• [92] The Unions submit that the relevant provisions can co-exist and operate harmoniously and that definitions of Ordinary Hours or Shift Worker do not limit the duration of a Work Cycle. On this construction, the Unions submit that where the threshold of 152 hours in 28 consecutive days is exceeded, it is arguable that APT must pay overtime. If this matter involved identifying the proper construction of the 2022 Agreement that submission may have some force. However, the task of the Commission in considering an application under s.217 is not to interpret an enterprise agreement. Rather, the task involves identifying whether there is ambiguity or uncertainty. The Unions' submission that the entitlement to be paid overtime for hours worked in excess of 152 hours in 28 consecutive days is arguable reinforces my view that the 2022 Agreement is ambiguous and uncertain. As stated by the Full Court in Bianco Walling, if it is not possible to put any definite meaning on a clause, it is uncertain.[77]

Should the Commission exercise its discretion to vary the 2022 Agreement?

[93] As I have identified ambiguity and uncertainty in the 2022 Agreement, the issue turns to whether the 2022 Agreement should be varied to remove the ambiguity or uncertainty.

• [94] In exercising such a discretion, the Commission is to have regard to the common intention of the parties at the time the agreement was made.[78] In Re Monash, Bell DP accepted that the common intention of the parties was, where appropriate a significant factor, but it was not a mandatory factor, and observed that there have been cases where the power to vary an enterprise agreement under s.217 has been exercised despite a finding that there was a common intention.[79]

• [95] As to identifying common intention, in Re Monash, Bell DP stated that the task was not without challenge. After setting out an analysis of authorities dealing with the principles of contractual construction and rectification, Bell DP approached the task of objectively identifying common intention as being a "search for actual intention through the prism of considering and weighing the admissible evidence probative of actual intention",[80] following the approach of Keifel J in assessing evidence in support of a claim for rectification in Simic v New South Wales Land and Housing Corporation[81] (Simic).

• [96] In Simic, Keifel J stated:[82]

What is necessary to be shown is the actual intention of each of the parties. This has often been referred to by intermediate appellate courts as the subjective intention of the parties. A court, in determining whether the burden of proof is discharged, may be said to view the evidence of intention objectively, in the sense that it does not merely accept what a party says was in his or her mind, but instead considers and weighs admissible evidence probative of intention. It is in this sense that statements such as that of Hodgson J in Bush v National Australia Bank Ltd, that common continuing intention "must be objectively apparent from the words or actions" of each party, may be understood.

• [97] In Australia Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd[83], Gray J held that the search for common (or mutual) intention is not to be found lightly, stating:

...For present purposes, I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken, however, to distinguish a common understanding from common inadvertence. If the only reason why the government instrumentality rates were not paid at the Victorian Arts Centre was that neither the union nor the employer adverted to the possibility that there was an obligation to pay them, no common understanding results. In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no-one has thought about the issue.[84]

• [98] In Shop Distributive and Allied Employees Association v Woolworths Limited,[85] in another decision by Gray ACJ, His Honour stated:

...There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. See Merchant Service Guild of Australia v Sydney Steam Collier Owners & Coal Stevedores Association (1958) 1 FLR 248 at 251 per Spicer CJ, 254 per Dunphy J and 257 per Morgan J, and Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452-453. It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning. See Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11 at [44].[86]

[99] Turning to the matter before me, I am satisfied that the evidence establishes there was a common intention during bargaining for the 2018 Agreement that Ordinary Hours for Shift Workers are not limited to 152 hours in 28 consecutive days if the hours worked in excess of that threshold are worked in accordance with an agreed Work Cycle or localised arrangement. Furthermore, I am satisfied and so find that the parties have conducted themselves according to that common understanding from the time the 2018 Agreement was made through to the operation of the 2022 Agreement.

[100] The definitions of Ordinary Hours and Shiftworker were amended during bargaining for the 2018 Agreement. At that stage, the IOC had been operating the Sportsman's Roster. In seeking to amend those terms, Mr A Smith and Mr Slaven sought to 'align' the 2018 Agreement with the Gas Award for the purposes of seeking 'protection' against APT introducing a Work Cycle in the future that was not agreed by a majority of Controllers. The email sent by Mr A Smith clearly stated that they were "not seeking to change rosters, just solidify current practices." Mr Slaven agreed that the current practices included working the Sportsman's Roster.

[101] The current practice at that time was the working of the Sportsman's Roster under the 2015 Agreement. Ordinary hours for continuous shift workers under the 2015 Agreement was an average of 38 hours over a period that must not exceed 12 months. The concern that Mr A Smith and Mr Slaven, as the employee bargaining representatives, were seeking to address was the issue of the introduction of a Work Cycle without majority agreement. They were particularly concerned that APT might move to introduce a Work Cycle similar to the roster worked by the Control Room Supervisors. As Mr A Smith stated, this was "our issue all along."

[102] There is no inconsistency between solidifying the practice of the Sportsman's Roster as it operated under 2015 Agreement in the 2018 Agreement as well as aligning the 2018 Agreement with the Gas Award. Clause 13.3(a) of the Gas Award provides that the ordinary hours of work for a continuous shiftworker are an average of 38 hours per week and must not exceed 152 hours in 28 consecutive days. Clause 13.3(b) of the Gas Award provides that where the employer and the majority of employees agree, a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days. There was no dispute that a majority of Controllers had agreed to the Sportsman's Roster continuing to operate - as the current practice - during bargaining for the 2018 Agreement.

[103] Mr Slaven and Mr A Smith both stated that it was their understanding following the bargaining meeting on 3 and 4 October 2018 that overtime would be triggered for hours worked in excess of 152 hours in 28 consecutive days. However, as stated in Simic, the search for actual intention involves consideration and weighing admissible evidence probative of intention and not merely accepting what a party says was in their mind.

[104] Having sought a position in the 2018 Agreement that solidified the current practice of working the Sportsman's Roster as it applied under the 2015 Agreement, all parties then conducted themselves consistently with that practice throughout the operation of the 2018 Agreement, bargaining for the 2022 Agreement, and during the operation of the 2022 Agreement.

[105] The probative evidence supporting this finding is as follows:

• Beyond Mr A Smith's bare statement that he propagated his understanding to the Controllers, there is no direct evidence of what Mr Smith told the employees. Nor is there any evidence that Mr Slaven communicated his understanding to employees;

• There was no adjustment sought or made to the Operations Allowance to compensate for rostered hours in excess of 152 hours in 28 consecutive days. I accept that both parties agreed that overtime could be separately claimed. However, the purpose of the Operations Allowance is to provide payment for all penalties and shift loadings arising from working rostered hours. I agree with Mr L Smith that it would not make sense to establish an allowance for that purpose and then only apply it to some rostered penalties and shift loadings but not others. The quantum of Operations Allowance was subject to extensive discussions following the introduction of a part-day public holiday. In those circumstances it is difficult to accept that Mr A Smith and Mr Slaven held the view that overtime would be triggered for working rostered hours in excess of 152 hours in 28 consecutive days yet not seek any adjustment to the Operations Allowance to compensate for that. Furthermore, their evidence that overtime could be claimed by employees on a per occasion basis, is undermined by the position they took to seek an adjustment to the Operations Allowance during the interest-based bargaining process;

• There was no claim by Mr Slaven, Mr A Smith, or any other Controller for overtime for hours worked in excess of 152 hours in 28 consecutive days throughout the duration of the 2018 Agreement. The only evidence of any claims made were the two claims in 2024 by Mr A Smith in relation to the 2022 Agreement. Those claims were only made after APT applied the more favourable interpretation for the purposes of the pay audit. Both of those claims refer to Mr A Smith having 'discovered' that overtime is 'now' payable and were labelled with warnings to his team leader not to automatically approve the claim. As to the correspondence sent by Mr Slaven on 27 February 2023, it is unspecific and simply asks that rosters in excess of 28 days be reviewed. That falls short of a definitive claim that overtime is payable for working in excess of 152 hours in 28 consecutive days. In any event, that correspondence was sent after APT had determined to apply the more favourable interpretation for employees as part of the pay audit. I also do not accept Mr A Smith's evidence that claims for overtime were raised with Mr Kruegar during the operation of the 2018 Agreement. Mr A Smith did not provide direct evidence in chief of those discussions, and it is inconsistent with the evidence of Mr Kruegar who was not challenged on his evidence;

• Although the Log Of Claims for bargaining for the 2022 Agreement referred to a discussion of Adhoc Overtime versus Over-Cycle Overtime, there was no evidence as to whether any discussion of that topic took place and if so, no evidence as to the content of that discussion; and

• • Perhaps most tellingly was Mr A Smith's evidence that APT's decision to apply Averaging Over a Defined Approach was not his understanding of how the 2022 Agreement operates and that the Averaging Over a Work Cycle Approach is "in place operational arrangement and is how the [2022 Agreement] currently operates and has previously been interpreted and understood."[87]

• [106] The only exception to the parties applying the 2018 Agreement and the 2022 Agreement consistently with the practice that existed under the 2015 Agreement was the position taken by APT for the purposes of the pay audit. However, APT have explained their reasoning for taking that position and that rises no higher than what Gray ACJ described as an act of generosity SDA v Woolworths.[88]

[107] Having found that the jurisdictional pre-requisite for the exercise of discretion under s.217 has been satisfied, and having objectively ascertained the common intention of the parties at the time the 2018 Agreement was made and that the parties have conducted themselves according to that understanding, I am satisfied that I should vary the 2022 Agreement to remove the ambiguity or uncertainty and allow the relevant terms to continue to have the commonly understood meaning. As stated by Gray J in LHMWU v Prestige Property, "if a common understanding existed when the award was made, it should not be departed from."

[108] If I am wrong in finding that there was a common understanding that ordinary hours for shift workers can exceed 152 hours in 28 consecutive days in accordance with an agreed Work Cycle or localised arrangement, then for the same reasons, I am satisfied that the evidence does not establish there was a common intention that a shift worker is entitled to overtime for hours worked in excess of 152 hours in 28 consecutive days.

• [109] In MSS Security, the Full Bench stated:[89]

If an ambiguity exists in relation to the payment of an additional amount, as in this case, and the evidence establishes that there is no mutual intention to pay the additional amount, then it would normally follow that the Commission should not vary the agreement to create an entitlement that is consistent with the intention of only one of the parties. Even if there is no clear mutual intention to not pay the additional amount, it would normally be desirable to resolve an ambiguity to make it clear that the amount is not payable when there is an insufficient basis to find that the parties agreed to pay the additional amount. Therefore, if there was no mutual intention to apply penalty calculations to the allowance, then absent any other compelling circumstance, the company's application was likely to succeed.

• [110] In MSS Security, the Full Bench upheld the decision at first instance in which the Commission found there a common intention existed. Therefore, the comments of the Full Bench are strictly obiter. However, that approach was followed by Asbury DP (as the Vice-President then was) in Cannon Hill Services Pty Ltd v Australasian Meat Industry Employees Union,[90] where the enterprise agreement was varied notwithstanding the evidence did not support a finding of a common or mutual intention. Similarly, I am satisfied that the 2022 Agreement should be varied to make clear that Shift Workers are not entitled to overtime for hours worked in excess of 152 hours in 28 days if those hours are worked in accordance with an agreed Work Cycle or localised arrangement. There is no compelling circumstance that militates against that approach. Rather, the incorporation of clause 13.3(b) of the Gas Award, and Mr A Smith's evidence that the averaging of hours over a work cycle is the 'in-place operational arrangement" support my view that the 2022 Agreement should be varied.

• [111] The power of variation granted by s.217 is only for the purpose of removing an ambiguity or uncertainty and not to give effect to a new and substantive change to the agreement.[91] Applications that seek the latter must be made under s.210 of the FW Act.[92]

[112] The variations sought by APT relating to All-Purpose Rate of Pay, Average, Ordinary Hours for Day Workers, Permanent Part-time Employee, and Payment of Wages go beyond removing the ambiguity or uncertainty and cannot be made under s.217

[113] Having regard to my findings, I consider that the 2022 Agreement should be varied as follows:

a) for day workers are to be an average of 38 hours per week but not exceeding 152 hours in 28 days.

b) for shift workers are to average 38 hours per week over a Work Cycle inclusive of meal breaks, over a period that must not exceed 152 hours in 28 days;

a) Continuous Shift Worker will apply when work is carried out with consecutive shifts throughout the 24 hours of the seven days of the week without interruption. Ordinary Hours for continuous shift workers will be an average of 38 Ordinary Hours per week over a Work Cycle inclusive of meal breaks and must not exceed 152 hours in 28 consecutive days. or

b) Non-Continuous Shift Worker will apply when shifts are not continuous. The Ordinary Hours of such shift workers must not exceed:

i. 38 hours within a period not exceeding seven consecutive days;

ii. 76 hours within a period not exceeding 14 consecutive days;

iii. 114 hours within a period not exceeding 21 consecutive days; or

iv. 152 hours within a period not exceeding 28 consecutive days; or

v. An average of 38 hours per week over a Work Cycle.

[114] I am satisfied that variations will remove the ambiguity and uncertainty and not give effect to a new or substantive change to the 2022 Agreement. In relation to the operative date, I consider that the variation should operate retrospectively from the date of commencement of the 2022 Agreement, namely, 8 June 2022. This will give effect to the common intention of the parties at the time it was made.

[115] I am satisfied that the definition of Ordinary Hours - as it pertains to shift workers - and the definition of Shift Worker in the 2022 Agreement are ambiguous and uncertain and that I should exercise my discretion to vary the definitions as set out above. The variation will operate retrospectively from the date of commencement of the 2022 Agreement.

[116] APT is file in the Commission a consolidated version of the 2022 Agreement incorporating the variation by 4:00pm on Tuesday 20 January 2026. Once a consolidated version of the 2022 Agreement is filed an Order will be issued varying the 2022 Agreement and publishing a consolidated version on the Commission's website.

[117] Having regard to the outcome of the s.217 Application, it is not necessary to determine the s.218A Application. However, had I not found there was ambiguity or uncertainty, or had I not exercised by discretion to vary the 2022 Agreement under s.217, I would have otherwise dismissed the s.218A Application.

[118] Section 218A of the Act provides as follows:

(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2) The FWC may vary an enterprise agreement under subsection (1):

(i) one or more of the employers covered by the agreement;

(iii) an employee organisation covered by the agreement.

(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.

[119] The Revised Explanatory Memorandum (REM) for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 states:

Section 218A - Variation of enterprise agreements to correct or amend errors, defects or irregularities

812. New subsection 218A(1) would empower the FWC, at its discretion, to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (ie, without the need for a Full Bench appeal). For example, the FWC could correct typographical errors or obvious omissions. The FWC would be able to decide how corrections are made.

813. This addresses a regulatory gap, as the existing 'slip rule' in section 602 enables the FWC's decisions, but not enterprise agreements, to be corrected: see Advantaged Care Pty Ltd v Health Services Union [2021] FWCFB 453.

814. By new subsection 218A(2), the FWC would be able to vary an enterprise agreement on its own initiative, or on application by a specified party.

815. By new subsection 218A(3), the variation would operate from the day specified in the FWC's decision.

816. The new section would complement the FWC's existing power to vary enterprise agreements to remove ambiguity or uncertainty (existing sections 217-217A).

• [120] In Australian Federated Union of Locomotive Employees v Aurizon Operations Ltd[93], the Full Bench stated that the power in s.218A to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity "is confined to the remediation of clearly apparent and unintentional mistakes in circumstances not susceptible to controversy."

[121] The variations sought by APT go beyond the power in s.218A and are in the realm of s.217 or s.210.

[122] To the extent it is necessary, the s.218A Application is dismissed.

A Denton of counsel for APT Management Services Pty Ltd.

C Taylor for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

[1] AE516135, as varied by APT Management Services Pty Ltd [2023] FWCA 45; PR749454.

[2] [2022] FWCA 1974 at [5].

[5] Exhibit A3 at [24], Annexure RK-1.

[6] Exhibit A3 at [25]-[29], Annexures RK-2 and RK-3.

[8] Exhibit A3 at [31]-[32]; Exhibit A4 at [8], [11] and [16]; Transcript at PN411.

[15] Exhibit R1 at [57]-[61], Annexures MS-19 and MS-20.

[16] Exhibit R1 at [63]-[66], Annexures MS-21 and MS-22.

[26] Exhibit R2 at [23]; See also Transcript at PN836.

[28] Exhibit R2 at [46], Annexure AS-08.

[29] Exhibit R2 at [54]-[58], Annexure AS-12.

[30] Exhibit R2 at [59]-[60], Annexures AS-13 and AS-14.

[32] Exhibit R2 at [62]-[63], Annexure AS-15.

[33] Exhibit R2 at [30], [50]; See also Transcript at PN862.

[44] Exhibit A5 at [15]-[19]; Exhibit A6 at [8].

[45] Exhibit A5 at [20], [23]-[24].

[62] Exhibit R2 at [66], Annexure AS-18.

[64] Exhibit R2 at [75], Annexures AS-21 and AS-22; See also Transcript at PN866-PN870.

[65] Exhibit R2, Annexures AS-21 and AS-22.

[69] Exhibit A2 at [36]; Exhibit R2 at [81].

[71] Exhibit R1 at [93], Annexure MS-36.

[72] Exhibit R1 at [94], Annexure MS-37.

[73] Monash University v National Tertiary Education Industry Union [2023] FWCFB 181 at [16]; Brockman Engineering Pty Ltd [2022] FWC 462 at [13]- [15].

[74] [2020] FCAFC 50 at [67].

[75] [2023] FWC 1148.

[76] United Voice v MSS Security [2016] FWCFB 4979 (MSS Security) at [19].

[77] Bianco Walling at [77] citing Meehan v Jones [1982] HCA 52.

[78] Tenix Defence Pty Limited re Tenix Defence Systems Pty Limited Certified Agreement 2001-2004 at [32] citing Re Victorian Public Transport Enterprise Agreement 1994 (Print M2454) at [4]; Re Telstra Corporation Ltd (PR954989) at [39]-[41].

[81] [2016] HCA 47; (2016) 260 CLR 85.

[83] [2006] FCA 11 (LHMWU v Prestige Property).

[85] [2006] FCA 616 (SDA v Woolworths).

[90] [2016] FWC 7256 at [137]- [138].

[91] Bianco Walling at [3]; Construction, Forestry, Maritime, Mining and Energy Union and others v Specialist People Pty Ltd [2019] FWCFB 6307 (Specialist People) at [42].

[93] [2023] FWCFB 193 at [76]- [77].

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