Australian Rail Tram and Bus Industry Union, New South Wales Branch v Transport Secretary o/b Transport for NSW [2025] NSWIRComm 1091

Australian Workers Union v Graziers Association (NSW) [1939] CthArbRp 107; (1939) 40 CAR 494

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 438 [53] and 440

City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-379

Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158 at [47]

Fair Work Ombudsman & Ors v Woolworths Group Limited & Ors [2025] FCA 1092 at [120]

New South Wales Nurses and Midwives' Association v State of NSW [2024] NSWSC 636 at [15]

Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWIRComm 23 at [115]

Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 at [46]

Australian Rail Tram and Bus Industry Union, New South Wales Branch

1. On 22 July 2025 the Australian Rail Tram and Bus Industry Union, New South Wales Branch (the RTBU or Notifier), notified the Industrial Registrar of an industrial dispute with the Transport Secretary (the nominal employer of staff employed by the Transport Service), in connection with the application and operation of the Transport for New South Wales and Sydney Metro Salaries and Conditions of Employment Award 2022 (the Award). Specifically, the dispute concerns the entitlements of continuous shift workers when working overtime[1] on public holidays at the Respondent's Transport Management Centre (the TMC).
2. The Notifier maintains the relevant employees in the TMC who work overtime on a gazetted public holiday are entitled to both the payment of a penalty rate for that work (at the rate of 250% of their rate of pay) and time in lieu for the public holiday on which the overtime was worked (NSUB [6]). The Respondent maintains the relevant employees who perform overtime on a public holiday are entitled to be paid at the relevant penalty rate only (it is not in dispute that rate is 250% of their rate of pay), and whatever practice has been adopted in the past, the Respondent cannot be prohibited from complying with the Award on its proper construction (RSUB [5]).
3. A number of attempts to resolve the matter by Conciliation were held between 22 July 2025 and the issuing of a Certificate of Attempted Conciliation on 19 August 2025, at which time the matter was programmed for hearing.
4. The parties filed evidence and submissions in accordance with a timetable based on the Commission's Usual Directions, and on 21 October 2025 the parties filed a helpful Statement of Agreed and Disputed Facts and Issues (the Agreed Facts). The parties did tender statements filed in advance of the hearing, but proceeded on the basis that the Agreed Facts set out the material factual considerations. The summary of Background below is largely (but not entirely) based on the Agreed Facts.

1. On 1 November 2011, the corporation known as Transport for NSW (TfNSW) was established pursuant to Part 1A of the Transport Administration Act 1988 (NSW) (the TA Act). The affairs of TfNSW are managed and controlled by the Transport Secretary[2]. Despite its corporate status[3], TfNSW is not able to employ staff[4]. Staff are employed in the Transport Service by the Government of New South Wales under Part 7A of the TA Act[5], to enable TfNSW to exercise its functions. The Transport Secretary exercises the employer functions of the government in relation to persons employed in the Transport Service[6].
2. The functions of TfNSW include the co-ordination of transport services, the management of incidents affecting the efficiency of road and public transport networks, including the co-ordination of communications with and responses by relevant agencies, and the provision of information about transport services and transport infrastructure to assist people to use those services or infrastructure[7]. The TMC is one of the means by which those functions are delivered.
3. The TMC's centralised operations centre is referred to as the Transport Operations Room (the TOR). The TOR is responsible for a number of important functions, including coordinating network and service disruption and incident response on the NSW road network (including the coordination of emergency services, bus, light rail and ferry operators, and State transport operators including Sydney Trains and Sydney Metro). It operates 24 hours per day, seven days per week, 365 days per year.
4. The Award was made by consent and came into operation on 1 July 2022. It is divided into two parts:

(1) Part A of the Award (clauses 1 to 33), 'Core conditions covering normal operations', applies generally to employees as defined[8].

(2) Part B of the Award (clauses 34 to 38), 'Conditions covering shift-workers in the Transport Management Centre', applies to specified classifications performing work at the TMC. The clauses in Part B apply "to the extent" there is a "conflict" with a clause in Part A.

1. Relevantly for these proceedings, cl 34 applies to[9]:

(1) TOCs, meaning Duty Manager Operations Controllers, Deputy Duty Manager Operations Controllers, Senior Transport Operations Controllers and Transport Operations Controllers in the Operations Unit of the TMC; and

(2) TIOs, meaning Transport Information Officers in the TMC.

Collectively, TOCs and TIOs are referred to as the "relevant employees".

1. It is not in dispute that the relevant employees:

(1) Are covered by Parts A and B of the Award;

(2) Are continuous shift workers, with shift arrangements of 70 ordinary hours per fortnight, worked across six shifts per fortnight (usually three shifts per week) each of 11.67 hours in length.

(1) Clause 18, Hours of Work, provides for 35 ordinary hours per week (cl 18.1), worked between 7am and 7pm, Monday to Friday "Except as provided for in subclause 18.12, clause 21 and Part B, of this Award" (cl 18.2). Clause 18.12 provides additional conditions for Sydney Metro Community Information Centre Staff. It can be put to one side. Part B is addressed below. Clause 20 provides for a flexible hours arrangement, but it can also be put to one side.

(2) Clause 28, Overtime, relevantly provides "Any hours directed to be worked outside the Employee's ordinary hours of duty, if working standard hours, or outside the bandwidth, if working under a flexible working hours scheme, shall be overtime and managed in accordance with the overtime provisions of the Award": (cl 28.1(b)). As for payment, it relevantly provides "All overtime worked on a public holiday [shall be paid] at the rate of double time and one half": cl 28.3(b)(iv). If overtime is worked on a Saturday, Sunday or public holiday, the employee is entitled to "a minimum payment [of] three (3) hours work at the appropriate rate": cl 28.3(d). Clause 28.9, Payment for Overtime or Leave in Lieu, provides:

"The Employer shall grant compensation for directed overtime worked either by payment at the appropriate rate or, if the Employee so elects, by the grant of leave in lieu at the overtime rate in accordance with paragraph 28.3(b). This leave shall be taken within three months of the overtime worked subject to organisational convenience except where it is being used to look after a sick Family Member. The leave shall be taken in multiples of a quarter of a day. If leave in lieu is not taken within three months the overtime will be paid and the leave in lieu cancelled."

(3) Clause 21, Shift Work, being "work for which ordinary hours includes hours rostered outside the span of ordinary hours as set out in subclause 18.2" (cl 21.3(a)), provides for 35 ordinary hours per week, rostered over cycles of up to 8 weeks, with shift length parameters otherwise outlined in cl 21.6. Overtime for shift workers is "all time worked in excess of the rostered shift length or the maximum ordinary hours of the roster cycle" (cl 21.13). Clause 21.9, Payment for Shift Work, and cl 21.13, Overtime for shift workers, respectively provide in subclause 21.9(g) and 21.13(b)(iii) and (v) (emphasis added):

"(g) All ordinary time worked on a Public Holiday is at the rate of double and one half of the ordinary rate of pay. The Employee may elect, prior to working the public holiday, to be paid at the rate of time and one half of the ordinary rate of pay and a day off in lieu to be taken at a date mutually agreed between the employer and the Employee within 12 months following the Public Holiday. The day off in lieu will be cashed out if not taken within 12 months of it being accrued."

and

"(b) Payment of overtime will be made at the following rates:

...

(iii) Any overtime work carried out on a public holiday shall be paid for at the rate of double time and a half.

...

(v) Overtime may be granted as Time in Lieu in accordance with subclause 26.9 of the Award."

The reference in cl 21.13(b)(v) to cl 26.9 is wrong. It is clearly intended to refer to cl 28.9 of the Award (extracted above).

(4) Clause 26, Public Holidays (underlining added):

"26.1 Employees are entitled, without loss of pay, to the following standard public holidays:

(a) New Year's Day;

(b) Australia Day;

(c) Good Friday;

(d) Easter Saturday;

(e) Easter Sunday;

(f) Easter Monday;

(g) Anzac Day;

(h) Sovereign's Birthday;

(i) Labour Day;

(j) Christmas Day;

(k) Boxing Day;

(l) and an additional day between Boxing Day and New Year's Day,

and such other Local Holiday, public holiday/s or substitute day as ordered by the government from time to time.

26.2 Employees directed to work on public holidays are to be paid, excluding for overtime:

(a) a loading of 150% of the ordinary hourly base rate of pay for any time worked on such holiday; and

(b) an additional day's pay at ordinary rates.

26.3 Where Employees are not required to work on a public holiday and where the holiday is due they shall receive payment of the monetary value of the day.

26.4 Employees are not entitled to a public holiday where it occurs under the following circumstances:

(a) During approved leave of absence without pay exceeding one (1) month.

(b) When an Employee covered by Part B is rostered to work and is absent without leave.

(c) When an Employee is on strike or is suspended without pay.

26.5 Public holidays occurring during the taking of annual leave shall be treated as additional to the quantum of annual leave being taken.

26.6 An Employee required to work on a Local Holiday will be granted time off in lieu on an hour for hour basis for the time worked on the Local Holiday.

26.7 If a Local Holiday falls during the period of an Employee's absence on leave, the Employee is not entitled to the holiday"

1. A "Local Holiday" is defined to mean "a holiday that is declared as an additional holiday for a specified part of the State under the Public Holidays Act 2010 (NSW)"[10].
2. Part A also includes Clause 9, No Extra Claims[11]. The Notifier in part relied upon this clause in support of an alternative contention, should the Commission find the Award did not provide what it contends. The argument being to the effect that it would be an "extra claim" if the Respondent was to demand the withdrawal of an over-Award entitlement that had been consistently applied at the time the Award was made (that is to say, such a demand would be for a reduction in conditions of employment). Given the conclusion I have reached, it is unnecessary to deal with that submission.
3. Turning then to Part B, clause 34 modifies Part A for the relevant employees affected by this dispute. Clause 34.1 importantly provides an interpretive rule clarifying the interaction between Parts A and B of the Award:

"To the extent this clause conflicts with a clause in Part A, this clause will prevail" (emphasis added).

1. Clause 34 then sets out specific conditions for the relevant employees in relation to Hours of Work (cl 34.2, including ordinary hours[12], conditions for Full Time and Part Time employees[13], entitlements where Employees are rostered to work shifts of 12 hours 10 minutes,[14] and meal breaks[15]), specific entitlements for Shift Work (cl 34.2, including defining shifts[16] and shift rosters[17], payment for shift work[18], an additional entitlement to annual leave for these shift workers[19]), a specific overtime entitlement scheme to TOCs and TIOs[20], and specific sick leave entitlements[21].
2. Under cl 34, TOCs and TIOs are continuous shift workers (cl 34.2(b)(i)), working 35 ordinary hours per week (cl 34.2(a)), worked as "70 hours ...over a 2 week roster cycle", rostered on shifts "of 12 hours 10 minutes, including a 30 minute meal break and a 20 minute paid crib break" (cl 34.2(ii)), with no more than three consecutive days being worked in any seven day period (cl 34.2(b)(iv)). Clause 34.3(b)(vii) and (viii) relevantly provide:

"(vii) Payment for all ordinary time worked on a Public Holiday shall be at the rate of double and one half of the ordinary rate of pay,

(viii) Employees rostered off on a public holiday shall be credited with a day in lieu for each such day."

1. Clause 34.4 deals with overtime, providing generally "All time worked in excess of 11 hours 40 minutes per shift or 70 hours per fortnightly pay period between midnight Sunday and midnight Saturday, shall be paid at the rate of time and one half for the first 2 hours and double time thereafter. Each period of overtime shall stand alone": cl 34.4(a). Overtime worked on "a public holiday [entitles a payment] at the rate of double time and a half" (cl 34.4(c)), with a minimum payment for 3 hours work at the appropriate overtime rate (cl 34.4(d)). For completeness, I note there are equivalent entitlements for work on a public holiday for the other classification of workers covered by Part B of the Award.
2. In practice, the Respondent offers overtime work to the relevant employees, which the relevant employees can either accept or decline to work.
3. Mr Craig Andrew Norton, the Director, Customer Journey Operations, since approximately January 2022, gave evidence of the functions and operations of the TMC including (amongst other things), the rostering arrangements in practice. Simply described, whilst the patterns differ somewhat between the different classifications amongst the relevant employees, they typically work;

(1) 70 ordinary hours a fortnight comprising 6 x 11.67- hour shifts on a rotating roster to provide 24hr coverage (typically three shifts in every seven-day period).

(2) The employees are broken into a number of teams, each of which is led by a relevant manager/supervisor. The teams work a roster. The roster fully rotates over the course of 12 weeks, meaning each of the teams works a roster "line" each fortnight, with each roster line providing a particular set of shifts and days off for the employees. Fully rotating through the various shift/day off patterns in the specific roster lines ensures the even distribution across employees of day shifts, night shifts, weekend work and the like.

(3) Rosters are published 30 days in advance of the first shift for the roster period, using a digital rostering system known as Microster.

1. Mr Norton described overtime as "optional" (as opposed to directed), and employees are able to mark themselves 'unavailable' in the digital rostering system so they will not, for example, be invited to backfill a shift that has become vacant. He describes overtime for the relevant employees being 'planned' or 'unplanned', the former involving the creation of additional shifts in a roster pattern to meet events that are known to give rise to increased need for staffing (such as the City2Surf or Vivid), and the latter (for example) arising from the need to fill a shift in the roster left vacant for some reason (such as a employee falling ill or in an emergency situation). In either case, the shift is filled by offers made and accepted, with a relevant employee picking up the overtime shift. If no-one can take the whole shift "efforts will be made to redistribute the workload to employees already on shift".
2. The Notifier called evidence from a number of the relevant employees who described, in their circumstances, having historically received both a payment for hours worked at the relevant overtime rate, and a credit of time in lieu for the public holiday (albeit it often required specific claims to be raised), when they worked overtime (whether planned or unplanned, as described by Mr Norton) on a public holiday. Amongst that evidence there was repeated reference to an email exchange dating to November 2023 involving a Mr Kieren Wood, Acting Senior Manager Operations Coordinator, in which he made reference to cll 26.6 and 34.3(b)(viii) of the Award when confirming, in his understanding, employees who worked overtime on a public holiday were entitled to both payment at the penalty rate (of 250%) and time in lieu.
3. That collection of evidence has been largely overtaken, however, by an agreed fact that there has been an inconsistent application of the entitlements under clause 34.3(b)(viii) over the years. Some relevant employees, when working overtime on a public holiday, were provided the following entitlements:

(1) Payment of 250% for hours worked on the public holiday; and

(2) A day in lieu (or part day) credited to the employee's 'time-in-lieu' hours.

1. On 17 December 2024, the Respondent circulated a communication to its employees which indicated its position concerning entitlements when relevant employees worked overtime on a public holiday. The position as communicated by the Respondent was that it considered that the relevant employees were not entitled to receive both overtime rates and the day in lieu when working overtime on a public holiday.
2. The matter was put into dispute by the Notifier union.

1. I have had regard to the detailed written and oral submissions of the parties. It is unnecessary to set them out in terms. Broadly summarised, the submissions of the Notifier[22] argue in the application of the ordinary principles of construction[23], its position is supported by one of two paths (my emphasis):

(1) There is conflict between Part A and Part B of the Award. Part B prevails to the extent of any inconsistency. In that connection, the Notifier contends cl 34.3(b)(viii) provides relevant employees who are "rostered off" on a public holiday are credited with a day in lieu for each such day. As a matter of logic, public holidays on which overtime is worked in the case of continuous shift workers is, by definition, always work done at a time when they would otherwise be 'rostered off'. As stated by French J in Re City of Wanneroo v Holmes '[a]wards ... should make sense according to the basic conventions of the English language.' Shift workers who accept overtime work on a public holiday cannot be disentitled from the operation of clause 34.3(b)(viii) because they subsequently accept overtime work (NSUB [19] - [21]). For those that work overtime (necessarily meaning work when they are otherwise not rostered to work) on a public holiday, they are entitled to the day in lieu (cl 34.3(b)(viii)) and to be paid for "Any overtime work carried out on a public holiday ...at the rate of double tie and a half": cl 34.4(c) (noting the minimum 3 hour payment: cl 34.4(d)).

(2) In the alternative, if there be no conflict between Part A and Part B, clause 26.2 of the Award supports the proposition of the Notifier. In that connection it was said (NSUB [23] - [29]):

(a) Clause 26.2 clearly delineates between the penalty percentage rate of 150% and the additional day's pay at ordinary rates. It excludes overtime. In the case of TMC employees and as a resulting effect of coverage of both Parts A and B of the Award, the effect of clause 26.2(b) remains when clause 26.2(a) is displaced by the working of overtime on a public holiday.

(b) The word "paid" in the opening words of cl 26.2 should not be understood literally, but as intended to provide Part A employees (excluding for overtime) with the benefit of the penalty rate of 150% (cl 26.2(a)) as well as "a day in lieu" (cl 26.2(b)). Whilst the rate contemplated by cl 26.2(a) is displaced because it conflicts with cl 34.4(vii), the day in lieu in cl 26.2(b) does not and so continues to apply.

(3) On either case, the Notifier's construction is generally consistent with the shift worker entitlements in the context of the Award read as a whole: NSUB [32] - [43].

1. The Respondent contends the relevant employees who perform overtime on a public holiday are entitled to, and only entitled to, payment at the rate of 250% for all hours worked on the public holiday. They are not additionally entitled to time in lieu: RSUB [4] - [5]. The Respondent's submissions[24], broadly summarised, are to this effect:

(1) There is no dispute that where the relevant employees work overtime on a public holiday, they are entitled to be paid at the rate of 250% (or double time and a half). The issue is whether they are additionally entitled to any other benefit. In that connection:

(2) The Notifier's reliance on cl 26.2 is entirely misplaced. It does not apply to overtime. It only applies to employees "directed" to work overtime (which the relevant employees are not), and it does not provide for a time in lieu entitlement at all: RSUB[32]

(3) The Notifier's reliance on cl 34.3(b)(viii) should also be rejected:

(a) Clause 34.3(b), sets out the rates of pay payable for shift work. It is clearly directed at rates payable for ordinary hours, and the penalties that may attach to such hours. It reflects a pattern seen throughout the Award all the entitlements for ordinary hours, for overtime and the like are self-contained in a particular clause (using the submission directed to overtime in cl 28 to illustrate the Respondent's pattern point, "one doesn't need to look outside the payment for overtime provision to find the entitlement for what are all the benefits that I get for working overtime"[25]).

(b) Subclause 34.3(b)(viii) applies to employees "rostered off on a public holiday". The words are expressed in present tense - not past tense. Employees are entitled to a day in lieu if they are rostered off on the day of the public holiday. The clause only applies to shift workers who, by definition, work on a rotating roster of no more than three consecutive days in a week, and so may miss out on the benefit of a public holiday by reason of the happenstance of their roster. If the shift worker accepts an overtime shift on a public holiday, the worker is no longer "off on a public holiday", and so does not receive time in lieu under cl 34.3(b)(viii), but does reap the benefit of the public holiday - namely the higher rate of pay that attracts to such work (see cl 34.4(c)).

(c) Reading the Award as a whole, and consistently, overtime pay is dealt with separately in Part A and in Part B. Both sets of overtime provisions are wholly contained. All the benefits that attract to overtime work are identified. Clause 28.3 (in Part A) clearly does not provide for overtime rates of pay in addition to a day in lieu for working overtime. So much is clear by the existence of cl 28.9, which allows employees to convert overtime rates to equivalent days in lieu. When work on a public holiday attracts multiple entitlements, it is clearly set out - see, for example, cl 26.2. If the Award had intended to impart the benefit of 250% penalty rates and a day in lieu entitlement to overtime worked on a public holiday by TOCs and TIOs, cl 34.4(c) could, and would, have simply stated as much.

(d) Finally, it is somewhat nonsensical that, on RTBU's construction:

(i) the time in lieu entitlement is only for the hours worked by the shift worker (which may be as few as three hours). That language is not found in cl 26.2 or in 34.3(b)(viii); and

(ii) the entitlement would only extend to shift workers who were initially rostered off, and not to shift workers who were otherwise performing overtime on a public holiday. Why shift workers performing overtime on a public holiday would be treated differently if they were initially "off" is not immediately apparent and not explained in the Notifier's submissions.

(e) The construction advanced by the Respondent is consistent with the text, context and purpose of the provision. A shift worker who is "rostered off" on a public holiday has the choice of: (a) having a day off on another occasion (but no additional pay); or (b) assuming a shift is available, volunteering to pick up an overtime shift on the public holiday and receiving 250% rate of pay for such work (in addition to their weekly wage)

(1) The Respondent's contentions around the operation of cl 26 ought not be accepted (NRSUB [2] - [11]), for various reasons (which need not be presently detailed).

(2) The Respondent's construction on the operation of cl 34.3(b)(viii), emphasising the use of past tense to argue that once an employee has accepted an overtime shift they are no longer "rostered off" is wrong. The Award does not deal with the concept of rostered overtime. To construe the Award in the manner suggested by the Respondent would give rise to the absurd position that an employee who works very small amounts of overtime on a public holiday would be denied a day in lieu: NRSUB at [13] - [24].

1. The parties also articulated arguments on the operation of cl 9, No Extra Claims of the Award (NSUB at [55] - [57]; RSUB [43] - [46]; NRSUB [25] - [28]). Given the conclusion I have reached, it is unnecessary to consider those contentions.

1. The entitlements of the relevant employees when working overtime on public holidays are determined by the proper construction of the Award. The principles that inform the proper construction of an award were not in doubt and need not be set out at length here[26].
2. It is sufficient to recognise the following. Whilst the Commission ought not be too concerned by 'mere infelicities of expression'[27], the interpretation of an award nonetheless must begin with a consideration of the ordinary meaning of the words used, understood in their industrial context and purpose[28]. The task remains interpreting a document produced by others[29]. The intention of the drafters must be ascertained by reference to the actual words used[30]. The task is to objectively interpret the text used in the document, understood in context - not to give effect to an anteriorly-derived notion of what would be fair and just[31].
3. Context, in this instance, begins with the statutory environment in which the Award was agreed, including the Public Holidays Act 2010 (NSW) (the PH Act). The PH Act (s 7) adopts sections 114 and 116 of the Fair Work Act 2009 (Cth) (the FW Act) as a law of New South Wales. At their most basic, s 114 of the FW Act entitles an employee (subject to an employer's reasonable request), to be absent from work on a day or part‑day that is a public holiday, and s 116 entitles a worker so absent to (my emphasis) "pay ...at the employee's base rate of pay for the employee's ordinary hours of work on the day or part‑day". As Perram J observed in Fair Work Ombudsman & Ors v Woolworths Group Limited & Ors [2025] FCA 1092 (at [120]), s 116 of the FW Act:

"...moves the economic cost of public holidays from employees who have ordinary hours which fall on a public holiday to their employer. It does so by requiring the employer to pay the employee for the ordinary hours even though they were not worked because of the public holiday."

1. Turning then to the Award, in order to understand its proper operation, one must first begin with Part A: Part B of the Award only applies "to the extent" there is a "conflict" with "a clause in Part A"[32]. Part A applies to employees generally. The standard position is 35 ordinary hours worked Monday to Friday in the span contemplated by cl 18.2 (including if working a flexible hours roster: cl 20.2(e)), or for those shift workers within cl 21.1(f) or (d) (which excludes those covered by Part B), 35 ordinary hours averaged over a roster period (including hours rostered hours outside the span of hours contemplated by cl 18.2: cl 21.3(a)).
2. Ordinary hours include hours worked on a public holiday that falls Monday to Friday, albeit they attract a penalty (described below).
3. Clauses 26.1 and 26.3 broadly reflect the general position in the PH Act that where an employee is "not required to work and where the holiday is due", they are to be paid the "monetary value of the day" (cl 26.3), in that way meeting the command of 26.1, that the employee is "entitled" to the holiday "without loss of pay" (the day is lost but the worker is paid the value of the day).
4. The parties have obviously been conscious that the right to a public holiday in cl 26 will, to the extent there is no conflict, apply to those covered by Part B. Part B is expressly recognised in the entitlement to a public holiday at all, in that the entitlement to a public holiday (reflected in cl 26.1) does not apply "When an Employee covered by Part B is rostered to work and is absent without leave": cl 26.4(b).
5. Employees "directed to work on public holidays" (here referring to ordinary hours) are to be "paid', "excluding for overtime", necessarily meaning for work in their ordinary span of hours, a loading (150% of the ordinary hourly base rate for any time worked on such holidays: cl 26.2(a)), "and", "an additional day's pay at ordinary rates" (cl 26.2(b)). The "additional day's pay at ordinary rates", regardless of how many hours are actually worked on the public holiday, ensures the employee, despite being directed to work, retains the benefit contemplated by cl 26.1 (because they are paid for the full day under subclause 26.2(b), regardless of how much time is worked - the holiday may be lost in whole or part, but it is not lost without pay).
6. The notion of "directed" (cl 26.2) and "not required" to work (cl 26.3), must be understood in light of the statutory context of the PH Act, adopting s 114 of the FW Act[33], but that can be put to one side for the moment.
7. There is an arrangement for a "Local Holiday" (defined in cl 2.1 of the Award to mean "a holiday that is declared as an additional holiday for a specified part of the State under the Public Holidays Act 2010 (NSW)"), in cl 26.6: "An Employee required to work on a Local Holiday will be granted time off in lieu on an hour for hour basis for the time worked on the Local Holiday." A Local Holiday in the Award may well be intended to refer to a "Local event day" [34] under s 8 of the PH Act. Unlike an "Additional public holiday" or a "Substituted public holiday" in ss 5 and 6 of the PH Act, such a day is not a public holiday (see s 8(4) of the PH Act), which may explain why it has been separately identified in the Award (such a day not being a standard public holiday listed under cl 26.1(a)-(l)[35]). The arrangement for a Local Holiday in the Award thus provides a bespoke benefit of time in lieu for any hours worked on a Local Holiday.
8. Clause 21.9(g) provides a specific scheme for the limited group of shift workers covered by cl 21, which provides (my emphasis):

"All ordinary time worked on a Public Holiday is at the rate of double and one half of the ordinary rate of pay. The Employee may elect, prior to working the public holiday, to be paid at the rate of time and one half of the ordinary rate of pay and a day off in lieu to be taken at a date mutually agreed between the employer and the Employee within 12 months following the Public Holiday. The day off in lieu will be cashed out if not taken within 12 months of it being accrued."

1. Before turning to the Award's overtime provisions, it is convenient to address an aspect of the Notifier's alternative argument. That is, the Notifier's contention that cl 26.2(b) should not be read as contemplating a payment, but as entitling the employees to "a day in lieu": NSUB [22] - [28]. It does not. I agree with RSUB [21] "The clause is not concerned with time in lieu benefits". In terms, cl 26.2(b) says an employee is "to be paid... an additional day's pay" on top of the loaded rate of pay in subcl 26.2(a) when working ordinary hours, clearly to ensure that the public holiday is not lost without "loss of pay": cl 26.1. The Notifier's alternative argument does not invite me to avoid an infelicity in language. It invites a substantive re-writing of the clause. Where the parties have intended to provide for a day in lieu, directly or upon election, they have expressly said so (for example, Part A shift workers may make an election to take either an additional day's pay or a day in lieu: cl 21.9, for ordinary hours worked on a public holiday).
2. Turning then to overtime, Part A deals generally with overtime in cl 28. Overtime is defined in cl 28.1(b) as "Any hours directed to be worked outside the Employee's ordinary hours of duty, if working standard hours, or outside the bandwidth, if working under a flexible working hours scheme", in which case the overtime is to be "managed in accordance with the overtime provisions of the Award": cl 28.1(b). Overtime for shift workers are dealt with elsewhere.
3. The expression "managed in accordance with" the Award reflects the fact overtime entitlements are not simply about rates (and are in some respects qualified). They include overtime worked that is less than a quarter of an hour or time spent travelling is not to be paid (cl 28.2(b) and (d)), there are various meal break and meal allowance entitlements connected with overtime work (cl 28.6 and 28.7), the rates for overtime vary (see cll 28.3 and 28.8), there are minimum rest periods between shifts after working overtime (cl 28.3(e)), there are minimum payment entitlements for overtime worked in certain circumstances (cll 28.3(d), 28.4(a)), and that in some circumstances an employee accrues "flex time" rather than an overtime payment: see cl 28.1(d), or may elect to take time in lieu of overtime: cl 28.9.
4. The rates outlined in cl 28.3 do not apply to a "shift worker" as defined (see cl 28.3(a)), meaning the rates do not apply to "an Employee who works rostered shifts": cl 2.1, Definitions. For those employees who are not shift workers, "All overtime worked on a public holiday [shall be paid at] the rate of double time and one half": cl 28.3((iv), and the employee is entitled to a minimum 3 hour payment: cl 28.3(d).
5. Rates of overtime payment for those who are shift workers is provided by:

(1) For Part A shift workers, cl 21.13, which means "Any overtime work carried out on a public holiday shall be paid at the rate of double time and a half" (cl 21.13(b)(iii)), which "may be granted as Time in Lieu in accordance with subclause 26.9 [obviously 28.9] of the Award": cl 21.13(b)(v); or

(2) One of the specific clauses in Part B that applies to shift workers. For, the relevant employees, cl 34.4. Specifically on public holidays "Any overtime work carried out on a public holiday shall be paid for at the rate of double time and a half" (cl 34.4(c)), with a minimum payment of 3 hours: cl 34.4(d)

1. I accept the Award does recognise a distinction between ordinary hours worked on a public holiday and overtime hours worked on a public holiday, but not in the way the Respondent contends. The rostering contemplated by cl 34.2 is clearly for "ordinary hours" of work (see cl 34.2(a), (b)(ii), (c)(i) (d)(i) and (ii)). The Award does not contemplate rostered overtime. In referring to rosters, the Award is clearly describing the ordinary hours rosters contemplated by the Award itself. In crafting the various entitlements applicable to public holidays, the parties have carefully distinguished between entitlements when employees:

(1) are "not required to work" (cl 26.3) or are "rostered off" (cl 34.3(b)(iii), 37.3(b)(viii), 38.5(g)), (noting in some respects the Award provides "A rostered day off must not fall on a public holiday": cl 35.3(a)). The words "not required to work" and "rostered off", need to be understood in light of the remainder of the Award, including the defined term Rostered Day Off[36] in cl 2.1, meaning "the day that an Employee has off duty in accordance with the rostering arrangements in their area of operation". Again, in referring to rostering arrangements in their area, the Award is speaking of the ordinary hours rosters it describes.

(2) work ordinary hours on a public holiday (cl 26.2, 21.9, 34.3(b)(vii), 37.3(b)(vii), 38.5(f)); and

(3) the rates of pay for overtime worked, which by its very nature involves work performed when the employee would not ordinarily be required to work or would be rostered off (whether it be by virtue of an extension at either end of a shift[37], as the result of a recall[38], or for the whole or a part of a rostered day off, whether the overtime be planned or unplanned as described by Mr Norton). In those circumstances, for shift workers, "any work carried out" is to be paid "at the rate of double time and one-half" (clauses 21.13 (b)(iii), 34.4(c), 35.6(c), 36.6(c), 37.4(c), 38.7(c)), with those in Part B additionally entitled to a minimum 3 hour payment (clauses 34.4(d), 35.6(d), 36.6(d), 37.4(d), and 38.7(d)).

1. Compensation for overtime worked is to be "either by payment at the appropriate rate or, if the Employee so elects, by the grant of leave in lieu at the overtime rate in accordance with paragraph 28.3(b)": cl 28.9[39]. There is no conflict with cl 28.9 in cl 34, but that seems to add little to the argument as on any view of it, clause 28.9 only deals with how the employee receives the value of the penalty rate for overtime (whether on a public holiday or not).
2. The Respondent's argument is, in part, grounded in the practice of the Respondent to offer, rather than direct, overtime to employees, including overtime to work on a public holiday. The Respondent's argument is otherwise addressed to a shift worker who "accepts an overtime shift on a public holiday" (RSUB [37]), the shift being included in a roster as either a planned additional shift or a shift left vacant (for example, because someone is sick), arguing once accepted, they are no longer "off on a public holiday": RSUB [37]. That submission appears to be grounded in the evidence of how the Respondent creates 'unallocated' shifts, additional to what is normally required when dealing with known increases in demand (allocated overtime as it is described in the submissions) or offers whole shifts to workers when unplanned overtime arises (RSUB [14] - [18], referring to evidence of Mr Norton). How parties to an Award have conducted themselves under an Award (evidence of 'user' as it is sometimes described[40]) is not relevant to the proper construction of the Award.
3. The very fact the parties have crafted a minimum 3 hour payment entitlement in cl 28.3(d) and 34.4(d) recognises overtime on a public holiday may not involve a full day's work. The Award is not crafted on the basis that someone will work an entire day or shift on overtime, and thereby receive 250% of what they would ordinarily earn on a full day or shift. Even Mr Norton's evidence indicates in some circumstances overtime work may be allocated to those already on shift: at [21].
4. Whilst the Respondent's submissions have a superficial attraction, upon examination they appear to have some foundational difficulties including:

(1) First, they fail to properly engage with the concept of rosters in the Award, describing the scheme for ordinary hours - in context, being "rostered off" is being rostered off ordinary hours;

(2) Second, it fails to grapple with how the Award would operate when a relevant employee works less than a full day (or shift) of overtime (perhaps less than 3 hours, albeit the minimum payment would then arise), on a public holiday. If the only benefit available to one of the relevant employees is that provided by cl 34.4(c) for overtime work performed on a public holiday, as the Respondent argues, such an employee would not have been afforded the entitlement contemplated by cl 26.1 of the Award (which itself broadly reflects s 7 of the PH Act, adopting the national minimum standard in s 116 of the Fair Work Act). Such an outcome, in my view, creates such an industrially impracticable and unfair outcome, that it cannot have been intended.

(3) Third, it would mean for a relevant employee who performs overtime on a public holiday they would at best, if they worked a full shift (as the relevant employee working ordinary time in accordance with the roster in 34.2 would), receive the same entitlement as a colleague working ordinary hours (see cl 34.3(b)(vii) and 34.4(c)). But, if they work overtime on a public holiday that involved less than a full shift (as the Award contemplates), they could, on the Respondent's argument, receive a lesser benefit than if they had stayed home (cl 34.3(b)(viii)). Both propositions appear unlikely to have been intended and create an industrially impracticable and unfair outcome.

1. There a tension in the literal reading of the Award providing an employee being paid for "work carried out" (cl 34.4(c)) on a day they are "rostered off" (cl 34.3(b)(viii)), but that tension all but evaporates when three contextual considerations are taken into account:

(1) Clause 34 (like the other aspects of Part B) only applies "to the extent" it "conflicts with a clause in Part A": cl 34.1. Clause 34.3(b) describes a range of payments to be made in the ordinary application of the continuous shift worker rostering pattern contemplated by cl 34.2, informed by the shift types described in 34.3(a). There is a degree of incongruity in cl 34.3(b) "Payment for Shift Work" itself in that cl 34.3(b)(viii) purports to provide for a payment when a relevant employee is not required to work at all (the remaining subclauses of cl 34.3(b) providing ordinary payment entitlements for ordinary hours work, including by way of leave loading: cl 34.3(b)(ix)-(x)). But that is the same incongruity that arises in cl 26.3. The purpose of cl 34.3(b)(viii) is self-evident (as the Respondent acknowledged: RSUB [36]). Subclauses 34.3(b)(vii) and (viii) are clearly the mechanism by which the parties have intended the relevant employees would be provided the entitlements contemplated by cl 26.2 and 26.3 for employees under Part A (subcll 34.3(b)(vii) and (viii) creating a conflict with cl 26.2 and 26.3, but preserving the benefit contemplated by cl 26.1).

(2) Absent cl 34.3(b)(viii) being read as the Notifier contends, there is no "conflict" between cl 34 and cl 26.1 such that cl 26.1 would nonetheless continue to apply (cl 34 only prevailing "to the extent" of any conflict with a clause in Part A), meaning the relevant employees would continue to have an entitlement to standard public holidays without loss of pay in any event.

(3) For continuous shift workers, overtime is only available when they would otherwise be "rostered off".

1. The Notifier's construction provides that relevant employees working overtime on a public holiday (which may be less than a full day or shift under the Award, and so the rate of pay would not necessarily compensate for the day lost, or result in an entitlement to the value of 350% of the ordinary day as the Respondent submitted[41]), maintain their entitlement under cl 26.1 (itself reflecting part of the national minimum standards under the FW Act adopted as a standard in New South Wales via the PH Act), to a holiday on a standard public holiday without loss of pay (because a day in lieu is provided), but compensates for work done by the higher rate of pay. It avoids the industrially impracticable and unfair consequences of the Respondent's construction.
2. That is not to assign a meaning to the Award in order that it may provide what I consider appropriate[42]. It is to recognise that the words used in the instrument cannot be interpreted in a vacuum divorced from industrial realities[43]. It is to recognise a construction that contributes to a sensible industrial outcome, an outcome that ought be attributed to the parties who negotiated[44] the Award (noting it was made by consent) is to be preferred, and recognises the need to avoid narrow or industrially impracticable interpretations[45]. As Madgwick J said in the oft cited passage from Kucks, meanings which avoid inconvenience or injustice may reasonably be strained for[46]. There is no real strain in the ordinary meaning of the words here - after all, an employee who performs overtime does so, by definition, at a time where they are not required to work, or are rostered off, from ordinary hours.
3. The Respondent suggested to construe cl 34 (in particular, subclauses 3(b)(viii) and 4(c)) as the Notifier contends, would be inconsistent with employees who work overtime on a public holiday in Part A, arguing[47] "Clause 28.3 (in Part A) clearly does not provide for overtime rates of pay in addition to a day in lieu for working overtime": RSUB[38]. Clause 28.3 (like cl 34.4(c)) self-evidently does not provide for a day in lieu, but I do not agree there is inconsistency of the kind relied upon.
4. Clause 26.3 provides an entitlement to "payment of the monetary value of the day", when the employee is "not required to work on a public holiday and where the holiday is due". In context, similar to the use of the expression "rostered off" in cl 34.3(b)(viii), "not required to work on a public holiday" is a reference to the employee not being required to work ordinary hours under the relevant ordinary hours scheme (being the counterfactual to employees "directed to work" ordinary hours in cl 26.2 for non-shift workers, and the notion of a 'rostered shift worker' being "an Employee who is required to work their ordinary hours on a permanent shift work roster" in cl 21.3(b), noting cl 21.9 provides for ordinary hours for Part A shift workers).
5. In my view, a Part A employee who works overtime on a public holiday, being a day they are not required to work ordinary hours, are entitled to both the "monetary value of the day" (cl 26.3) and payment at the relevant penalty rate for the hours worked on the public holiday (cl 28.3(b)(iv), noting the minimum payment contemplated by cl 28.3(d)). If Part A of the Award is not understood in that way, the same industrially impractical and unjust outcomes I described above would arise for Part A employees. If understood in the way I have explained, whilst a Part A employee would be entitled to a payment equivalent to the monetary value of the day rather than a day in lieu, there is no sharp inconsistency in treatment between Part A employees and those under cl 34 as suggested by the Respondent. There is a large measure of consistency between Part A and Part B. In addition to the consistency with overtime, there is broad consistency with ordinary hours worked on a public holiday:

(1) Part A shift workers in cl 21.9 are entitled to 250% of the ordinary rate of pay for ordinary hours worked on a public holiday (and have an election as to whether to receive 150% rate of pay for the hours worked and a day in lieu, such flexibility no doubt reflecting the potential for differing shift lengths in this cadre).

(2) Part A non-shift workers directed to work ordinary time are entitled to 150% for hours worked (cl 26.2(a)) and an additional payment reflecting the monetary value of the day (cl 26.2(b)), agnostic (as the Respondent's counsel described it[48]) as to the hours actually worked on the day. The 'monetary value of the day' no doubt reflecting the fact the employee could be a standard day worker under cl 18.2, or be working under a flexible hours arrangement under cl 20, but nonetheless, unlike shift workers, working a day within the standard band.

(3) Part B, cl 34, continuous shift workers are entitled to 250% of the relevant rate of pay for ordinary hours worked on a public holiday: cl 34.3(b)(vii), the value of which would be impacted by which shift type (listed in cl 34.3(a)(i) - (iv)) is worked.

1. There is a significant measure of consistency across Part A and Part B of the Award, but not as the Respondent described it.
2. I determine that the proper interpretation, application and operation of the Award is that a relevant employee under cl 34 is entitled to both the penalty rate provided by cl 34.4(c) for "Any overtime work carried out on a public holiday", and the day in lieu under cl 34.3(b)(viii), if they perform overtime on a public holiday (that is to say, a public holiday on which they are not rostered to perform ordinary hours).

1. The notifier seeks a "determination" under s 175 of the IR Act, and recommendations under s 136(1)(a) of the IR Act. It has not sought either a direction under s 136(1)(a) or an Order under s 136(1)(d). The form of the relevant relief claimed by the Notifier (RSUB [7]) is drafted on the proposition the Award provides a relevant employee who works overtime on a public holiday is entitled to "time in lieu for the hours worked" on a public holiday. It does not. Clause 34.3(b)(viii) entitles a relevant employee "rostered off" on a public holiday, to a day in lieu, not time in lieu for the hours worked (as, for example, 26.6 does for ordinary time worked on a Local Holiday). In any event, a determination under s 175 is not a form of relief in and of itself, but is rather a facilitative step to enable the interpretation, application or operation of a relevant instrument to be determined as a step when discharging a function under the IR Act.
2. The proper interpretation, application and operation of the Award relevant to the issue in dispute in the current matter, is reflected in paragraph [57] above. In addition, I make the following Recommendation pursuant to s 136(1)(a) of the IR Act:

(1) The Respondent is to update its payroll practices to reflect the proper interpretation, application and operation of the Award as I have determined it for the relevant employees when working overtime on a public holiday; and

(2) Within 28 days of the publication of this decision the Respondent ought review its records to identify and redress any failure to properly acquit the time-in-lieu entitlements of relevant employees who have worked overtime on a public holiday.

11 November 2025 - Amended the the Decision section of the coversheet to reflect the final form or orders/relief granted rather than the determination of the proper interpretation of the Award.

[1] The Dispute as originally framed was not constrained to the relevant employees when working overtime, but the submissions of the notifier are confined to entitlements of the relevant employees when working overtime, as was the oral argument.

[4] s 3E(4) of the TA Act, and s 47A(2) of the Constitution Act 1902 (NSW)

[5] ss 68B and 68C of the TA Act, and s 47A(1) of the Constitution Act 1902 (NSW)

[6] s 68(3) and (4) of the TA Act. The Transport Secretary's functions may be delegated: see s 68Q(7) of the TA Act

[7] s 3E and Schedule 1 Part 1 cl 1(f), (g) and (h), of the TA Act

[8] Meaning "all persons employed as a member of the Transport Service in the TfNSW Group and the SM Group who are not designated as a Transport Service senior manager or as a Transport Service senior executive as defined in the Act": cl 2.1 of the Award.

[9] Cl 34.1, noting the definitions in cl 2

[11] Following its variation effective 19 December 2024 (398 IG 31, Serial C10010)

[17] Cl 34.3(d), including that TOCs will be consulted with a view to developing and implementing fatigue principles and systems: cl 34.3(e)

[22] Written Submissions of the Notifier dated 9 September 2025, Court Book Tab B7 (the NSUB), Written Reply Submissions filed 7 October 2025, Court Book Tab D1 (the NRSUB), that were supplemented orally

[24] Written submissions filed 30 September 2025, Court Book Tab C2 (the RSUB), supplemented orally

[26] NSUB [14]-[18], New South Wales Nurses and Midwives' Association v State of NSW [2024] NSWSC 636 [15], Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 at [46], Kucks v CSR Limited (1996) 66 IR 182 at 184 and Marmara v Toyota Motor Corporation Australia Ltd [2013] FCA 1351 [21]-[22], City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-379; RSUB [25] - [29], referring additionally to City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 438 [53] and 440, and Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWIRComm 23 at [115]

[27] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 440

[28] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 438 [53], New South Wales Nurses and Midwives' Association v State of NSW [2024] NSWSC 636 [15](a), Zoological Parks Board at [46]

[30] Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158 at [47]

[31] New South Wales Nurses and Midwives' Association v State of NSW [2024] NSWSC 636 [15](d)

[32] Clauses 34.1, 35.1, 36.1, 37.1, and 38.1

[33] As to which see Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, and the discussion of 'request' and 'required' at [32] - [38]

[34] The reference to "an additional holiday for a specified part of the State under the Public Holidays Act" reflecting the types of Orders that the Minister may make on application of a local council under s 8(1) of the PH Act, to "declare a specified day or part-day to be a local event day in the local government area or in a specified part of the local government area". It would also appear to capture a local public holiday declared under the Banks and Bank Holidays Act 1912, preserved by cl 4, Schedule 1 of the PH Act.

[35] The entitlement in cl 26.1 of the Award is to standard public holidays listed in cl 26.1(a)-(l) "and" another "Local Holiday, public holiday/s or substitute day as ordered by the government from time to time". In this context the conjunctive "and" indicates the parties recognised a "Local Holiday" is not a "standard public holiday" (referred to in the opening of cl 26.1), or "public holiday/s or substitute day as ordered by the government from time to time", but nonetheless captures a Local Holiday as within the class contemplated by the entitlement in cl 26.1.

[36] And "Accrued day off" defined to mean "the day not being a holiday, that an Employee has off duty arising from the working of a 19 day month": cl 2.1

[37] See cl 34.4(a), Notably contemplated by cl 34.2(c)(ii) and (iii) but not expressed as overtime, but even then when "rostered to work shifts of 12 hours 10 minutes".

[38] Cl 28.4, noting there is no conflict in cl 34

[40] Zoological Parks Board of New South Wales v The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 at [58]

[41] Cf the Respondent's submission 22/10/2025 pg 29 line 49 to pg 30 line 3

[42] Cf City of Wanneroo Holmes [1989] FCA 369; (1989) 30 IR 362 at 379, referring to Australian Workers Union v Graziers Association (NSW) [1939] CthArbRp 107; (1939) 40 CAR 494

[43] City of Wanneroo v Australian Municipal Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [57]

[44] Amcor Limited v Construction, Forestry, Mining and Energy Union and Others [2005] HCA 10; (2005) 222 CLR 241 at [96] per Kirby J

[45] New South Wales Nurses and Midwives' Association v State of NSW [2024] NSWSC 636 at [15(e)]

[47] The oral submission raised inconsistency in a different manner, but to the same effect: TS 22.10.2025 pg 29 line 49 to pg 30 line 4