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[2021] FWC 4809
General information, not legal advice.
Fair Work Commission
2021-08-05
Original judgment source is linked above.
s.739 - Dispute resolution
Application to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement - maximum personal call period specifiable by an employee.
[1] The Australian Rail Tram and Bus Industry Union (RTBU) is in dispute with Aurizon Operations Limited (Aurizon) in relation to the proper construction of the expression "personal call period specified by each employee" in clauses 24.6 and 24.7 of the Aurizon NSW Coal Operations Enterprise Agreement 2018 (Agreement).
[2] Members of the RTBU are employed by Aurizon in its coal business unit. They operate coal trains in New South Wales, transporting coal from coal mines (relevantly for the purposes of this dispute) in the Hunter Valley to the Newcastle port. The Agreement applies to them in relation to their employment with Aurizon.
[3] The Hunter Valley rail network is managed by the Australian Rail Track Corporation (ARTC), which is an Australian Government owned statutory corporation. Aurizon pays a fee to ARTC to use this network. The network is also used by passenger trains, grain trains and freight trains, each of which are given priority over coal trains on the network. This system of priority, together with a range of other factors, results in regular changes being made to the coal train movements planned by Aurizon. In turn, this means that it is desirable for Aurizon to have some flexibility in relation to the times at which employees covered by the Agreement commence and finish each shift. Over time, Aurizon and its employees have bargained for arrangements which seek to strike a balance between Aurizon's desire for flexibility in its rostering arrangements and the employees' desire for certainty in their rostering arrangements and appropriate notice for any changes to those rosters. These bargains have been recorded in a series of enterprise agreements, the latest of which is the Agreement.
[4] Clause 24 of the Agreement deals with the concepts of "lift up" and "lay back". "Lift up" is a process whereby an employee is required to commence their shift earlier than was originally rostered. "Lay back" is a process whereby an employee is required to commence their shift later than was originally rostered. Clauses 24.6 and 24.7 of the Agreement provide that "crews will be advised within the personal call period specified by each employee for the purpose of lift up and lay back". The effect of these provisions is that an employee will be notified by Aurizon within their "personal call period" of any change ("lift up" or "lay back") to the commencement time for their shift. The parties are in dispute as to whether there is a maximum "personal call period" specifiable by an employee and, if so, what is the maximum "personal call period" (Dispute).
[5] On about 6 November 2020, the RTBU filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission) for the Commission to deal with the Dispute pursuant to clause 52 of the Agreement. That clause sets out the procedure to resolve "a dispute about a matter arising under this Agreement, or in relation to the NES". The Dispute is plainly about a matter arising under the Agreement.
[6] I conciliated the Dispute on a number of occasions but could not resolve it. The RTBU then asked for the Dispute to be arbitrated pursuant to clause 52 of the Agreement. The parties agree that I have the power to arbitrate the Dispute.
[7] The arbitration hearing took place on 15 June 2021. Mr Luke Roberts, RTBU delegate and train driver employed by Aurizon, and Mr Stephen Wright, organiser employed by the RTBU, gave evidence on behalf of the RTBU. Aurizon adduced evidence from Mr Peter Lennox, Regional Planning and Integration Manager employed by Aurizon, and Ms Kylie Merrick, Live Run Coordinator employed by Aurizon. Mr Lennox was required for cross examination. Ms Merrick was not.
[8] The agreed questions for determination in this Dispute are as follows:
In the proper application of clause 24.6 of the Aurizon NSW Coal Operations Enterprise Agreement 2018, is there a maximum "personal call period" specifiable by an employee?
If the answer to one is "yes", what is the maximum "personal call period"?
[9] The following provisions of the Agreement are relevant to the Dispute:
6.1.1 The Company and employees acknowledge, it is critical to the company's ongoing success that an increased level of business competitiveness is achieved through continuous improvement in operational reliability, provision of quality customer service and improved productivity.
6.1.2 As part of an on-going process for improvement in productivity and efficiency, consultation shall take place at the workplace level between the Company, the employees and the employee representatives (as set out in subclause 50).
6.1.3 A key part of this is the commitment of all parties to utilise and adhere to the dispute settling procedure set out in subclause 52 of this Agreement.
6.1.4. The parties commit to providing continuity of service to customers and the parties will not engage in any industrial action which affects customer service for the period of operation of this agreement set out subclause 3.1 of this Agreement.
(ii) Shared responsibility to achieve Company goals;
(iii) Encouraging skill acquisition and personal development;
(iv) Effective consultation, communication and decision making;
(v) Flexible working conditions that will take into account employee needs balanced against the Company's objectives.
(i) To carry out work as directed, in accordance with their skills competency and training and in accordance with this agreement including working reasonable overtime and shift work;
(ii) To comply with Company policies, practices or procedures as varied from time to time;
(iii) To act with a duty of care as per the relevant legislation, policies, practices and procedures to safeguard each other and those that come into contact with at the workplace.
6.3.1 Principles of Equity: The parties to this agreement are committed to the principles of equity.
(i) The creation of conditions whereby the Company utilises the skills and abilities of all employees to meet the needs of the Company;
(ii) The removal of unlawful discrimination from all employment practices;
(iii) Regards for the basic human right of each individual to be treated with respect and dignity;
(iv) The right of each employee to compete with others for positions on the basis of their skills, talents and capabilities and willingness and not to be denied fair selection appraisal or to be excluded during the process by inappropriate rules or attitudes; and
(v) The needs of Equal Employment Opportunities (EEO) target group members by recognising the impact of workplace conditions and practices upon them and taking measures to ensure they are not disadvantaged.
6.3.2 Diversity in Workplace: The employee and the Company agree to respect and value the diversity of the workplace by helping to prevent and eliminate discrimination at our workplace on the basis of race, sex, colour, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, transgender, religion, political opinion, national extraction or social origin.
16.1 The Company and its employees agree they both have a duty of care that the improvement and maintenance of occupational health and safety standards and procedures in the work environment is a primary objective of the Company.
16.2 The Company will take all practical and reasonable measures to ensure the health, safety and welfare of all employees as well as ensuring a safe and healthy work environment. The Company will also monitor and seek to improve systems and processes to ensure that both its statutory obligations and the objectives of this Agreement are met.
16.3 Employees must ensure that you perform your job safely and discharge your health and safety obligations to yourself, other employees, contractors, visitors or customers. You must co-operate with the Company in matters related to health and safety and follow applicable policies and procedures in the performance of your work. You must also notify your supervisor or manager of any situation which you genuinely believe poses a risk to health and safety.
In recognition of the particular circumstances of the Company's operations, the overriding concerns in determining hours of work shall be the needs of the Company's clients and safety of operations, including the management of fatigue for operations employees.
21.2.1 Roster cycle hours will be ordinary base hours over a 2 week roster cycle an employee will work 76 hours for each roster cycle.
21.3.1 The time taken to travel to another sign on point other than those covered in subclause 36 is to be included as Roster Cycle hours it is incurred in.
21.4.1. Employees may be required to work reasonable rostered overtime (with the exception of working rostered days off) at the applicable overtime rate in accordance with subclause 62.9 of this Agreement.
21.4.2. An employee may refuse to work overtime if the overtime is unreasonable, having regard to:
(i) Any risk to an employee's health and safety from working overtime;
(ii) The employee's personal circumstances (including any family responsibilities);
(iv) Any notice given by the Company of the requirement or request that the employee work the overtime;
(v) Any notice given by the employee of their inability to work the overtime;
(vi) The usual patterns of work in the rail industry;
(vii) The nature of the employee's role and the employee's level of responsibility;
(viii) Whether the overtime is on a public holiday;
22.1 The Company will consult with affected employees in the development of rosters.
22.2 Based on operational requirements rosters shall conform to either Blank Line Rostering or forecast rostering conditions with posted Rostered Days Off. A Blank Line Roster is a roster where no known work is indicated. For Fatigue Management, rosters should be forward rotation with the clock.
22.3 The Company and employees shall develop and modify rosters consistent with operational requirements subject to these conditions.
22.4 The master roster shall be exhibited indicating Rostered Days Off for the complete Roster Cycle. In this context the complete cycle means the number of lines in the roster.
22.5 The Company may change master roster/s no more than 3 times in a 12 month period. Changes to the master roster shall be arranged through consultation. Twenty-eight days' notice is required prior to implementations of changes to the master roster.
23.1 For Blank line zone rostering, the working roster will be available and posted to confirm the allocation of work and sign on time by no later than 1600 hours each day. The working roster will contain advice for at least the following shift/s up to 0600 hours the subsequent day including Barracks Working and the advice of both the forward and return journeys.
23.2 Incorporating Time Zones aid employees to organise their rest/ leisure time, as well as, serving as a guide for the purposes of fatigue management. Train crew will be rostered in their appropriate zones.
23.3 If Aurizon implements a blank line roster for any depot, it will be a full Blank Line Roster with the inclusion of a minimum of six 'Zones' of sign on times, with each zone duration being a maximum of four hours.
23.4. During the rostering development process there may be the inclusion of further zones which may overlap the current zone times;
24.1. Lay Back is the process of having employees, when advised, start their shift later than originally rostered. The Company may lay back an employee to a maximum of One (1) hour at the Employee's Home Depot and two (2) hours at a Barracks Location from the original rostered time for the shift.
24.2. Lift Up is the process of having employees, when advised, start their shift earlier than originally rostered. The Company may lift up an employee to a maximum of One (1) hour at the Employee's Home Depot and two (2) hours at a Barracks Location from the original rostered time for the shift.
24.3. The Company may make a maximum of one (1) change to a shift (within lift up / lay back provisions for the sign on advice for the day), unless mutually agreed to by the individual employee affected to more than one (1) change.
24.4. Subject to subclause 24.1 and 24.2 the Company may lay back or lift up an employee to start on an "X" Day. All hours worked on the "X" day will be paid at the applicable Base Remuneration hourly rate and be counted as part of the Roster Cycle.
24.5. Should an employee agree to a lift up/lay back outside the conditions agreed above (i.e. 1 hr at Home Depot and 2 Hrs at Barracks location), the employee is to be paid the extra hours at the Stand Alone Overtime rate. For example, an employee agrees to be laid back 4 hours at Barracks, the employee will be paid 2 hours at the Stand Alone Overtime Rate.
24.6. At Home depot crews will be advised within the personal call period specified by each employee for the purpose of lift up and lay back only.
24.7. Barracks Location crews will be advised within the personal call period specified by each employee for the purpose of lift up and lay back only. These times can be different.
24.8. Once called at barracks the Train Crew will be signed on at the times associated with that call.
24.9. An employee cannot be lifted up before 0600 following a rostered day off rostered in accordance with subclause 30.2, unless by mutual agreement.
24.10. Employee Requirement: For the purposes of subclauses 24.1 and 24.2, employees must take all reasonable measures to ensure they are contactable prior to the scheduled commencement of their shift. The Company may request an explanation where it has a concern about the frequency and pattern of an employee not being contactable.
25.1. Where shifts are cancelled and alternate work cannot be provided, crews will receive (six) 6 hours payment credited to their Roster Cycle hours for the period.
25.2. If a training shift is cancelled and alternate work cannot be provided, crews will receive (four) 4 hours payment credited to their Roster Cycle hours for the period.
25.3. Where it is necessary to cancel a previously rostered shift a minimum of 12 hours' notice from the rostered sign on time will be given.
25.4. Where advice of rostered shift cancellation cannot be given within the minimum time as listed above alternate work must be provided up to the rostered shift of Ordinary Hours, within lift up / lay back limits. Where this cannot be achieved subclause 25.1 shall apply."
[10] Mr Lennox gave useful evidence to explain different terms that are common usage in Aurizon's New South Wales coal operations business unit and are relevant to the Dispute. Mr Lennox was not challenged on that evidence and I accept it. The evidence is as follows:[1]
38. There are a number of different terms that Aurizon uses relevant to this dispute.
39. In this section I will set out the terms that are common usage within Aurizon's New South Wales coal operations, and which I will use in this witness statement. Some of these terms are defined in the 2018 Agreement, but some are not.
40. Barracks Location is the location from where an employee starts a Barracks Shift after having a rest break of at least ten hours in accommodation provided by Aurizon. Barracks Locations are located at Mudgee and Quirindi (for crews for which Quirindi is not their Home Depot).
41. Barracks Shift is a shift that involves an employee driving a train away from their home depot, having a rest break of at least ten hours in accommodation provided by Aurizon and then either driving a train back to their home depot, or travelling back to their home depot in a light vehicle.
42. Daily Posted Roster is the roster that employees actually work. This is the Master Roster, but updated to show actual start times (that is, the actual start times within each Zone), which may be amended through Lift Up or Lay Back under clause 24 of the 2018 Agreement.
43. Lay Back is when an employee starts their shift later than rostered on the Daily Posted Roster. Under clause 24.1 of the 2018 Agreement, Aurizon may lay back an employee to a maximum of one hour at the employee's Home Depot and two hours at a Barracks Location, unless otherwise agreed by the employee.
44. Lift up is when an employee starts their shift earlier than rostered on the Daily Posted Roster. Under clause 24.2 of the 2018 Agreement, Aurizon may lift up an employee to a maximum of one hour at the employee's Home Depot and two hours at a Barracks Location, unless otherwise agreed by the employee.
45. Local Shift is a shift that involves an employee signing on and signing off at their local depot (also referred to as their Home Depot).
46. Master Roster is the main roster that is used at a particular depot, where Shifts, Rostered Days Off and X-Days within each Roster Cycle are allocated, and which contains all the Roster Cycles to which an employee can be allocated. The Master Roster also contains Zone allocations, but it does not contain actual start times.
47. No Call List is the list of employees who have opted out of receiving 'wake up calls' by TCAS. These employees only receive a call, which is made manually by a Live Run Coordinator, if their shift is lifted up or laid back.
48. Personal Call Period is the nominated call time to provide the employee with sufficient time to prepare and present for their shift at the required time. Personal Call Period is mentioned in clause 24.6 and 24.7 of the 2018 Agreement in relation to Lift Up and Lay Back. It is not defined under the 2018 Agreement.
49. Roster Cycle: The period over which the roster cycles, which is currently two weeks. Each Roster Cycle contains a different allocation of Shifts, X-Days and RDOs. Each employee is allocated to a Roster Cycle on any given fortnight. The Roster Cycle runs from a Saturday and to a Friday in a two-week block.
50. Rostered Day Off (RDO) is a designated period during which an employee is not
rostered to work a shift, that is also not an X-Day. Under clause 30.1 of the 2018 Agreement, each employee is entitled to a minimum of four rostered days off per fortnight and the length of the designated period is 30 or more consecutive hours off duty. On the day prior to an RDO, under clause 30.3 of the 2018 Agreement, an employee cannot be required to commence a shift after 1200 hours (midday) unless he or she agrees and the employee cannot be Lifted Up to start before 0600 following an RDO unless he or she agrees.
51. Shift is the particular shift that an employee is allocated to work. The maximum shift length is 12 hours, and the minimum shift length is six hours for operational shifts. The maximum length of each shift (Shift Limit) is contingent on the nature of the work that is being performed and the particular crew configuration. The Shift Limits are prescribed by clause 27 of the 2018 Agreement.
52. TCAS stands for Train Crew Advisory System. It is the automated system that Aurizon currently uses to make Wake Up Calls to train crew.
53. Wake Up Call is a call that is made to an employee at their Personal Call Period to notify them of the commencement of their Shift. The Wake Up Call is made by TCAS but was previously made manually.
54. X-Day is a day that is not a rostered day off, on which an employee is not rostered to commence a shift, but is rostered to complete a shift which commenced the previous day.
55. Zone is the four-hour window within which a shift can commence, which are set out in clause 23.4 of the 2018 Agreement. The Zones are:
[11] There is no dispute between the parties as to the principles that apply in determining the proper construction of the Agreement. I will apply the principles summarised in the following two paragraphs.
[12] In AMWU v Berri Pty Ltd[2] (Berri), a Full Bench of the Commission summarised the relevant principles as follows:
"1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(ii) the disputed provision's place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."
[13] More recently, the Full Court of the Federal Court of Australia stated the principles applicable to the interpretation of an enterprise agreements in James Cook University v Ridd:[3]
"(i) The starting point is the ordinary meaning of the words, read as a whole and in context.
(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind". The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose".
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part, or to other documents with which there is an association".
(iv) Context may include "... ideas that gave rise to an expression in a document from which it has been taken".
(v) Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form..."
(vi) A generous construction is preferred over a strictly literal approach, but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties".
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry." [references omitted]
[14] The RTBU submits that clauses 24.6 and 24.7 have a plain meaning and are not ambiguous. The plain meaning for which the RTBU contends is that the "personal call period specified by each employee" is simply the period stated or specified by each employee. It is contended that there is no suggestion in the language used in clauses 24.6 and 24.7 that the personal call period for an employee is limited in any form by any qualification, requires agreement with the employer, is subject to operational requirements, or should be subject to any of the restrictions contended for by Aurizon.
[15] The RTBU submits that there is nothing in the context or surrounding circumstances which suggests that clauses 24.6 and 24.7 were objectively intended to have other than their ordinary meaning.
[16] The RTBU is aware of a couple of employees who have specified personal call periods of 2 hours and 25 minutes and 2 hours and 30 minutes respectively. They were informed by Aurizon that these personal call periods were not possible and could not be accommodated. Mr Roberts specified a personal call period of 8 hours, which was not accepted by Aurizon.[4]
[17] The RTBU contends that the answer to question 1 is "no" and, alternatively if the answer to question 1 is "yes", then the answer to question 2 should be "not less than 3 hours".
[18] Aurizon submits that the personal call period is the nominated call time to provide the employee with sufficient time to prepare and present for their shift at the required time. The current statistical breakdown of personal call periods for local or home depot crews is as follows:
up to 30 minutes: 1 employee;
31 minutes to 60 minutes: 94 employees;
61 minutes to 90 minutes: 135 employees;
91 minutes to 120 minutes: 94 employees; and
over 120 minutes: 1 employee.
[19] The longest personal call period of which Mr Lennox is aware is three hours. This was approved on a temporary basis for an employee who requested a three hour call time for a two week period to allow his wife to adjust to a new job and for child care arrangements to be made during this period.
[20] Aurizon submits that the wording of clauses 24.6 and 24.7 does not have a plain meaning and is ambiguous or susceptible to more than one meaning. It is contended that the expression "personal call period" is not defined and can only be understood in the context of the evidence of past and current practice, which is that the period has been and is limited to two hours unless approved by Aurizon in extenuating circumstances. Aurizon submits that it is implicit that the personal call period operates in a particular workplace context so as to facilitate the proper and effective utilisation of lift ups and lay backs. The use of the word "only" at the end of clause 24.6 confirms, so Aurizon contends, that a personal call period is inextricably linked to lift ups and lay backs.
[21] Aurizon submits that the period "specified" by each employee must necessarily have a limit otherwise an employee or group of employees could easily defeat the evident purpose of lift up or lay back by specifying an arbitrary or lengthy time period that is not grounded in reason. Aurizon submits that the use of the word "specified", and understood in the context of the relevant workplace practice, is not inconsistent with a limitation on the extent of the personal call period that may be specified by an employee, e.g. up to and including two hours. It is contended that such a limitation is necessary to provide the lift up and lay back provisions with work to do.
[22] Aurizon further submits that the uncertainty of the wording of clause 24.6 is compounded by the use of the word "within", which if applied literally would allow Aurizon to notify an employee of a lift up or lay back later than the actual time of the specified personal call period, e.g. in respect of a purported personal call period of three hours, Aurizon could notify the employee at two hours anyway.
[23] Aurizon contends that the proper application of clause 24.6 for which it contends is supported by a number of reasons. First, the words "personal call period specified by each employee" may be construed consistently with an implicit limitation on the extent of that specification for the reasons set out above. If that was not the case, the practical operation of clause 24 would be rendered futile and to the detriment of Aurizon's operations and work health and safety fatigue management. Aurizon contends that a maximum two-hour personnel call period (subject to extenuating circumstances) is important to allow proper decision making and to ensure the safety of the train crew.[5]
[24] Second, the purpose of clause 24 is to permit shift roster flexibility to shift start and finish times via the use of the lift up and lay back system. This operates in the context of a broader shift roster regulatory regime under Part 3 of the 2018 Agreement, including minimum and maximum shift limits. Clause 23 provides for the working roster to be available by 1600 each day for the following shifts up to 0600 hours the subsequent day. However, the operational requirements and fluidity of trade movements requires Aurizon to have the ability to make further changes on a real-time basis, which is assisted by the legitimate use of lift ups and lay backs.
[25] Third, a related purpose of clause 24 is the management of train crew fatigue, and in the context of broader work health and safety obligations owed by both Aurizon and its employees (see clause 16 of the 2018 Agreement). Fatigue management is an important justification for a lift up and lay back system that is able to operate effectively as well as to itself not create fatigue. For example, a personal call period of three hours, or more, has the effect of potentially waking an employee up too early in a lay back situation and itself creating fatigue.
[26] Fourth, it accords with past and current practice whereby each employee has, from time to time, nominated a personal call period of up to and including two hours and without the need to justify the period or obtain Aurizon's agreement.
[27] Fifth, the Agreement was made when the employees covered by it voted for it. The materials made available to employees for voting and related information purposes identified relevant changes to the maximum lift up and lay back period (i.e. one hour at home depot and two hours at barracks) and to the number of changes permitted to a lift up or lay back shift start time (i.e. one change). No change to the practice relating to personal call periods was identified. This is the best evidence of the objective background facts and common intention of the parties of what changes were being made to clause 24 when the Agreement was made by the employees voting for it.
[28] Sixth, the omission of the word "agreed" from clauses 24.6 and 24.7 of the Agreement is inconsequential and is best explained by the practice under the Aurizon NSW Coal Operations Enterprise Agreements 2014 (2014 Agreement) and the Interail Australia (Coal Operations - NSW) Enterprise Agreement 2010 (2010 Agreement) by which each employee was at liberty to specify, from time to time, a personal call period of up to and including two hours and without Aurizon's agreement.
[29] Seventh, the construction contended for by the RTBU would have the effect of limiting or even defeating shift roster flexibilities that are afforded by the lift up and lay back provisions. These flexibilities were already curtailed by the changes made to clauses 24.1 - 24.3 in the Agreement when compared to the 2014 Agreement. It would be an odd result if the length of a personal call period could be extended from the past and current practice, whereas these other flexibilities were shortened.
[30] Eighth, the current application of personal call periods has resulted in approximately 70% of employees nominating a period of 90 minutes or less. Almost all of the remainder of 30% of employees have nominated a period of between 91 and 120 minutes. Extenuating circumstances that pertain to a particular employee are able to be, and are best, addressed by a case-by-case basis.
[31] Aurizon contends that the answer to the first question is "yes", and the answer to the second question is "2 hours, except with Aurizon's approval in extenuating circumstances".
[32] The task of properly construing clauses 24.6 and 24.7 of the Agreement begins with a consideration of the ordinary meaning of the relevant words. The ordinary meaning of the word "specify" is "to mention or name specifically or definitely; state in detail".[6] The word "period" has a range of meanings. The most apt meaning in the context of clauses 24.6 and 24.7 is "any specified division or portion of time".[7] Accordingly, the ordinary meaning of the expression "will be advised within the personal call period specified by each employee" is that an employee will be advised within the period of time stated by the employee.
[33] The words "within" and "call period" suggest that an employee may specify a start and finish time of the period within which Aurizon must advise them of any lift up or lay back. For example, an employee may specify a personal call period of between 90 minutes and 95 minutes prior to the commencement time of the shift. In practice, Aurizon's employees specify a single amount of time (e.g. 90 minutes prior to the start of their shift), rather than a start and finish time of their personal call period. Aurizon accommodates this by ensuring each employee is called within a couple of minutes of their nominated call time. The way in which this operates in practice seems to suit the parties and is not part of the present Dispute. For completeness however, I reject Aurizon's contention that the use of the word "within" would allow it to notify an employee of a lift up or lay back later than the actual time of the specified personal call period, e.g. in respect of a purported personal call period of three hours, Aurizon could notify the employee at two hours anyway. This construction wrongly isolates the word "within" from the word "period". When those two words are read together, it is clear that Aurizon must advise an employee of a lift up or lay back within the period of time specified by the employee.
[34] A purposive approach must be taken to the construction of the relevant provisions. There is no dispute between the parties that the purpose of the requirement for Aurizon to advise an employee of a lift up or lay back within the employee's personal call period is to ensure the employee has sufficient time before the commencement of their next shift to prepare and present for their shift at the required time. Part of the purpose of the provision is also to permit the management of train crew fatigue. The time taken by an employee to prepare and present for their shift may vary significantly from one employee to another and from one time to a different time for the same employee. Factors which will impact the amount of time required for an employee to prepare and present for a shift include (a) the amount of time it takes for the employee to transport themselves, or be transported, from their home or wherever they are staying to work, (b) the amount of time it takes for the employee to attend to personal tasks such as showering, getting dressed, preparing and consuming a meal, and preparing food to take to work for consumption during their next shift, and (c) the amount of time it takes for the employee to attend to any personal duties or responsibilities they have prior to commencing work, such as attending to the needs of children or animals under their care.
[35] The expressions in clauses 24.6 and 24.7 must be construed in context. That includes the remainder of clause 24 and the whole of the Agreement. Part of the purpose of clause 24 of the Agreement as a whole is to permit some flexibility to shift start times by the use of the lift up and lay back system. I accept that if a very long personal call period was specified by an employee (e.g. 24 hours), the practical operation of clause 24 and in particular the ability to lift up or lay back the employee would be effectively rendered futile and to the detriment of Aurizon's operations and its ability to manage fatigue and safety in the workplace.
[36] Part of the relevant context includes the rostering system which operates within Aurizon's New South Wales coal business unit and in accordance with the relevant provisions of the Agreement. The starting point is a Master Roster, which runs for 90 weeks and then repeats itself. The Master Roster at a particular depot tells an employee the days on which he or she is rostered to commence a shift, is rostered to complete a shift which commenced the previous day (an "X-Day"), or has a rostered day off. The Master Roster does not inform the employee of the precise commencement time for each shift the employee is rostered to work. The Master Roster specifies "zone allocations" for each shift an employee is rostered to work. A "zone" is a four-hour window within which a shift may commence. The "Daily Posted Roster" for a particular traincrew is usually published each day at 1500 hours[8] and covers the period from 0601 hours on the next day to 0600 hours on the following day. This is when the commencement time for a shift within the "zone" is specified for the crew. For example, if a Master Roster has a crew rostered in "zone" 3 (0800 to 1159) for the next day, the "Daily Posted Roster" published at 3pm may inform the crew that the commencement time for their shift on the following day is at 10am. That commencement time may, however, be changed by lifting up or laying back the commencement time by up to one hour (or two hours in the case of a shift commencing at a Barracks Location).[9] Absent agreement by an employee, Aurizon can only make one change to the commencement time of a shift by lifting it up or laying it back.[10] It is within this context of "last minute" changes to an employee's shift by way of lift up or lay back that the obligation to advise the employee of the change "within the personal call period specified by each employee" arises.[11]
[37] An incident anywhere on the Hunter Valley rail network may alter planned train movements on a particular day.[12] As a result, Aurizon may wish to lift up or lay back the commencement time for a train crew. There are ordinarily two drivers in each train crew and they may have different personal call periods. In those circumstances, Aurizon needs to consider, among other things, the safety of the train crew and the longer of the personal call periods. Aurizon must contact the employee with the longer personal call period first to notify them of the lift up or lay back. The longer the personal call period, the earlier Aurizon must make a decision as to whether or not to lift up or lay back the shift commencement time for a train crew. The earlier Aurizon must make a decision as to whether or not to lift up or lay back the shift commencement time for a train crew, the harder it is to make a good decision in that regard. This is because information which is available at an earlier period of time is less likely to be reliable and a decision which is made at a particular point in time cannot take into account incidents which happen on the rail network at a later point in time, closer to the scheduled commencement time of the shift for the train crew in question.[13] These decisions have an impact on the efficiency of Aurizon's operations and the use of its labour. For example:
(a) if a train crew is not laid back and they start at their scheduled start time, they may have to sit around at the start of their shift and wait for the train to arrive, which is both inefficient and may increase the risk of the employees breaching their limitation of hours; and
(b) if a train crew is not lifted up and they start at their scheduled start time, they may have to drive, or drive further, to meet the train. This is an inefficient use of Aurizon's labour.
[38] Other difficulties with longer personal call periods include the impact on an employee's sleep and fatigue if they are called early (because they have a long personal call period) to be notified that their shift commencement time has been laid back,[14] as well as potentially increased shift lengths due to train crew being on earlier or later than required for the operation of Aurizon's trains.[15]
[39] Aurizon is concerned that some train crew may set longer personal call periods to minimise the prospect that they will be lifted up or laid back on the basis that a longer personal call period means their shift times are less likely to be changed. The RTBU and its members are concerned that the period of time a particular employee needs to get ready for and attend work is a private matter and is not Aurizon's concern, and employees should not have to share with Aurizon the intimate details of their personal, out of work, domestic daily routine and circumstances to reach some agreement with Aurizon about their personal call period.
[40] Context may also include the history of a particular clause. In this case, clause 24 (lift up/lay back) of the Agreement has a relevant history. Prior to the Agreement coming into operation on 27 March 2019, the relevant enterprise agreement was the 2014 Agreement, which was in operation from 23 May 2014 to 26 March 2019. Lift up and lay back was provided for in clause 24 of the 2014 Agreement. Clause 24.6 of the 2014 Agreement provided:
"24.6 Outside the above hours at home or at a barracks location crews will be advised within the agreed personal call period specified by each employee for the purpose of lift up and lay back only." [emphasis added]
[41] The relevant enterprise agreement prior to the 2014 Agreement was the Interail Australia (Coal Operations - NSW) Enterprise Agreement 2010 (2010 Agreement). Clause 33.5 of the 2010 Agreement was in the same terms as clause 24.6 of the 2014 Agreement.
[42] In my view, the deletion in clauses 24.6 and 24.7 of the Agreement of the word "agreed" from the expression "agreed personal call period specified by each employee" in clauses 24.6 and 33.5 of the 2014 Agreement and the 2010 Agreement respectively is significant. The deletion of the word "agreed" from that expression would clearly indicate to a reasonable person with knowledge of the relevant background facts that an employee to whom the Agreement applied no longer required the agreement of Aurizon to the "personal call period specified" by the employee for the purpose of being lifted up or laid back. Other changes to the relevant provisions between the Agreement and the earlier enterprise agreements, such as separating out "personal call periods" at "Home depots" and "Barracks Locations", do not bear on the question of whether it was objectively intended that agreement would be required to an employee's "personal call period".
[43] I reject Aurizon's contention that the omission of the word "agreed" is inconsequential and is best explained by the practice under the 2014 and 2010 Agreements by which each employee was at liberty to specify, from time to time, a personal call period of up to and including two hours and without Aurizon's agreement. In the context of there being a term in an applicable enterprise agreement requiring the agreement of Aurizon to an employee's personal call period, the practice prior to the commencement of operation of the Agreement on 27 March 2019 of permitting an employee to specify a personal call period of no more than two hours suggests that Aurizon always agreed to a personal call period of no more than two hours and only needed to consider the particular circumstances of a case when an employee sought Aurizon's agreement to a personal call period exceeding two hours. The practice prior to 27 March 2019 does not suggest any shared understanding or intention as to the rights and obligations which would apply under a different enterprise agreement which omitted the word "agreed" from the relevant provisions. A reasonable person with knowledge of both the past practice to which Aurizon refers and the omission of the word "agreed" from the expression "agreed personal call period" would not conclude that Aurizon's agreement was required under the Agreement to an employee's personal call period if, and only if, it exceeded two hours. The omission of the word "agreed" tells against Aurizon's consent being required to any personal call period specified by an employee.
[44] As to Aurizon's contention that the current practice of personal call periods has resulted in approximately 70% of employees nominating a period of 90 minutes or less and almost all of the remainder of 30% of employees have nominated a period of between 91 and 120 minutes, that is best explained by Aurizon's communication to the employees of its position that its agreement is required to a personal call period in excess of two hours and it will only consent to a personal call period exceeding two hours if there are extenuating circumstances. This practice is post-agreement conduct (i.e. it is post the making and approval of the Agreement) and can only be used to construe the Agreement if it can be shown that there has been a meeting of minds, a consensus. The evidence does not demonstrate that there has been any meeting of the minds in relation to the adoption of such a practice.
[45] I do not accept Aurizon's contention that it would be an odd result if the duration of an employee's personal call period could be lengthened from the past and current practice in circumstances where other flexibilities in shift rostering were shortened in the Agreement compared to the 2014 Agreement and the 2010 Agreement. Aurizon accepts in making this submission that it had more flexibility in rostering shifts and making changes to those rosters under the 2014 Agreement and the 2010 Agreement compared to the Agreement. That is correct. Under the earlier instruments compared to the Agreement, Aurizon could lift up and lay back for longer periods of time and make more changes to a shift within the lift up/lay back provision (two rather than one) without the agreement of the employees concerned. These changes suggest a shifting of the balance in favour of the employees on the topic of "last minute" changes to shift starting times. Contrary to Aurizon's submission, the omission of the word "agreed" from the expression "agreed personal call period" points in the same direction. It also suggests a regime in which employees have more favourable rights than under previous industrial instruments in relation to "last minute" changes to shift starting times and notification of those changes to employees.
[46] I accept that the materials made available by Aurizon to employees for voting and related information purposes in connection with the making of the Agreement identified changes to the maximum lift up and lay back period (i.e. one hour at home depot and two hours at barracks) and to the number of changes permitted to a lift up or lay back shift start time (i.e. one change) under the Agreement compared to the 2014 Agreement. No change concerning the expression "personal call period specified by each employee" in the Agreement, nor the practice relating to it, was brought to the attention of employees. However, I do not accept that the absence of any communication about a change to the personal call period provisions of the Agreement is an objective background fact which assists in the task of properly construing the relevant provisions of the Agreement. That is because, on any view of the Agreement, it made changes to the personal call provisions of the 2014 Agreement. It is clear from the terms of the 2014 Agreement that an employee's personal call period had, in all circumstances, to be "agreed" with Aurizon. Under the Agreement, the RTBU contends that an employee may specify any personal call period and Aurizon's agreement is not required under any circumstances. Counsel for Aurizon accepted at the arbitration hearing that, on Aurizon's construction of the Agreement, it is a feature of the Agreement that Aurizon's agreement is required to any personal call period beyond two hours, but its agreement is not required to any personal call period specified by an employee up to and including two hours. This is plainly a change from the requirements of the 2014 Agreement.
[47] Because the Agreement did, on either the RTBU's construction or Aurizon's construction, make material changes to the personal call period provisions of the 2014 Agreement, the fact that the communications to employees did not make mention of any change to the personal call period provisions is of no assistance in establishing the common intention of the parties or otherwise construing the relevant provisions of the Agreement.
[48] For the reasons given, even having regard to the context and surrounding circumstances, there is no ambiguity in the expression "personal call period specified by each employee" in clauses 24.6 and 24.7 of the Agreement. I am not persuaded that the context or surrounding circumstances on which Aurizon relies warrants a conclusion that the personal call period provisions of the Agreement should be construed other than in accordance with the ordinary meaning of the relevant words. That is not, however, the end of the analysis. Clauses 24.6 and 24.7 impose an obligation on (i) each employee to "specify" their personal call period and (ii) Aurizon to "advise" an employee, within the "personal call period specified" by the employee, of a lift up or lay back to the start time of their shift. Further, the provisions confer on each employee a discretion to determine the duration of their personal call period. The exercise of this discretion is not unqualified.
[49] Guidance as to the construction of industrial instruments such as the Agreement may be obtained by reference to principles which courts apply to the construction of commercial contracts.[16] A number of intermediate appellate courts have considered in recent years how discretions conferred on an employer under a contract of employment or workplace policy should be construed, including in circumstances where an employer has an apparently unlimited discretionary power to make a bonus payment to an employee. It is apparent from those decisions that such a discretion must not be exercised capriciously, arbitrarily or unreasonably, and the discretion must be exercised honestly and conformably with the purposes of the contract.[17] The requirement not to exercise the discretion unreasonably is to be construed in the sense of Wednesbury[18] unreasonableness,[19] so that the exercise of the discretion will not be unreasonable unless no reasonable employer could ever exercise the discretion in that way.
[50] Consistent with these decisions concerning the proper construction of a discretionary power in a contract or relevant policy, I am of the view that the discretionary power conferred on each employee by the Agreement to specify their personal call period is, on its proper construction, limited in that an employee must exercise the discretion honestly and conformably with the purposes of the Agreement and must not exercise the discretion capriciously, arbitrarily or unreasonably (in the Wednesbury sense). For example, an employee covered by the Agreement would not be permitted by clause 24.6 or 24.7 of the Agreement to specify:
(a) an arbitrary personal call period such as 9.27 hours;
(b) a personal call period which does not reflect the amount of time actually required by the employee before the commencement of their next shift to prepare and present for their shift at the required time; or
(c) a personal call period of, say, 24 hours, because they believe that such a call period would effectively prevent Aurizon from exercising its right to lift up or lay back the employee.
[51] As both parties recognise, the individual circumstances pertaining to a particular employee would need to be examined in order to resolve any dispute about whether the personal call period specified by that employee was determined honestly and conformably with the purposes of the Agreement, and not capriciously, arbitrarily or unreasonably. The Commission does not presently have before it the facts and circumstances pertaining to any such dispute. In the event that such a dispute does arise, it may be dealt with in accordance with the dispute settlement procedure in clause 52 of the Agreement.
[52] I do not need to resolve the contest between the parties concerning whether or not there is a relevant duty of cooperation which may bear on the specification of a personal call period by an employee. If such a duty does exist, it does not rise above a duty to specify a personal call period that enables the evident purpose of a personal call period in the context of lift up and lay back to be achieved and does not defeat that purpose. As I have already determined, an obligation of that kind already exists in the sense that the discretion conferred on each employee by clauses 24.6 and 24.7 of the Agreement must be exercised conformably with the purposes of the Agreement. This relevantly includes the flexibility Aurizon has under the Agreement to lift up and lay back the commencement time of an employee's shift and the related obligation on an employee to specify a personal call period which represents the amount of time required by the employee before the commencement of their next shift to prepare and present for their shift at the required time. Further, any dispute about whether a personal call period specified by a particular employee is inconsistent with a duty of cooperation owed by the employee would require knowledge of all the relevant facts and circumstances, and would have to be dealt with in accordance with clause 52 of the Agreement.
[53] I determine that the answers to the questions for arbitration are as follows:
No, but the personal call period specified by each employee covered by the Agreement must be determined by the employee honestly and conformably with the purposes of the Agreement, and not capriciously, arbitrarily or unreasonably.
Does not arise.
P. Matthews, Legal Officer, ARTBIU NSW Branch, for the Applicant
[8] The Daily Posted Roster must be published by 1600 hours each day
[9] Clauses 24.1 and 24.2 of the Agreement
[11] Clauses 24.6 and 24.7 of the Agreement
[14] This particularly impacts employees on the "no call list"
[16] Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [34]
[17] Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357) at [5]- [6]; Westpac Banking Corporation v Wittenberg [2016] FCAFC 33; (2016) 256 IR 181 at [127]- [130]; Foggo v O'Sullivan Partners (Advisory) Pty Ltd [2011] NSWSC 501; (2011) 206 IR 87 at [62]- [71] (not challenged on appeal): O'Sullivan Partners (Advisory) Pty Ltd v Foggo [2012] NSWCA 40 at [47]); McKeith v Royal Bank of Scotland Group PLC [2016] NSWCA 36; (2016) 260 IR 9 at [271]
[18] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223
[19] McKeith v Royal Bank of Scotland Group PLC [2016] NSWCA 36; (2016) 260 IR 9 at [238]
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Australian Rail, Tram and Bus Industry Union
Aurizon Operations Limited [2021] FWC 4809
(2016) 256 IR 181
(2011) 206 IR 87
(2016) 260 IR 9