Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/a Yarra Trams

Date of hearing: 28 October 2021

Counsel for the Applicant: Mr H Borenstein QC with Mr Y Bakri

Counsel for the First Respondent: Mr P O'Grady QC with Mr L Howard

Solicitor for the First Respondent: Herbert Smith Freehills

Counsel for the Second Respondent: Mr B Avallone

Solicitor for the Second Respondent: Herbert Smith Freehills

BETWEEN: AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION Applicant

AND: KDR VICTORIA PTY LTD T/A YARRA TRAMS (ACN 138 066 074) First Respondent

order made by: WHEELAHAN J DATE OF ORDER: 22 November 2021

1. Counsel for the parties are to confer, and by 4.00pm on 29 November 2021, the solicitors for the parties are to email to the Chambers of Wheelahan J draft orders to give effect to these reasons for judgment, and to provide for the further conduct of this proceeding. THE COURT NOTES THAT: If the parties are unable to agree orders, the court will fix a case management hearing. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The applicant is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth), and there is no issue in relation to its standing to bring this proceeding. The first respondent (Yarra Trams) is a national system employer for the purposes of the Fair Work Act 2009 (Cth) (FW Act, or Act), and operates the tramway services in Melbourne. The second respondent is employed by Yarra Trams as its Chief Operations Officer. 2 On 27 August 2021, I ordered by consent that a separate question be tried - Does the first respondent propose to contravene the Yarra Trams Enterprise Agreement 2019 - Operations and propose to contravene s 50 of the Fair Work Act 2009 (Cth) in the manner alleged at paragraphs 19 to 23 of the Statement of Claim dated 2 July 2021? 3 The separate question turns on limited facts and the construction of an enterprise agreement made and approved under the FW Act that covers and applies to the applicant organisation, Yarra Trams, and relevantly its employees employed as tram drivers. The issue in dispute is whether Yarra Trams proposes to contravene s 50 of the FW Act and the relevant enterprise agreement by altering entitlements to meal breaks for tram drivers in the manner alleged by the applicant in its statement of claim. 4 The basic foundation of the dispute was agreed between the parties by the terms of a statement of agreed facts, which was received into evidence. In addition, I received evidence of the terms of earlier industrial instruments covering tram drivers, and affidavit evidence of some industrial context around the management of tram timetables, rosters, and the reasons for meal breaks. Not all of the evidence that the parties sought to adduce was admitted. I ruled as inadmissible several paragraphs of affidavits filed on behalf of both the applicant and Yarra Trams. No deponent was cross-examined.

The industrial instruments 5 On 20 May 2020, an enterprise agreement titled the Yarra Trams Enterprise Agreement 2019 - Operations (2019 Enterprise Agreement) was approved by the Fair Work Commission pursuant to s 186 of the FW Act. By operation of s 54(1)(a) of the Act, the enterprise agreement commenced operation on 27 May 2020. The agreement has a nominal expiry date of 30 June 2023. Amongst other matters, the agreement provides for terms and conditions that regulate meal breaks for tram drivers. 6 The questions in this proceeding concern the construction of the 2019 Enterprise Agreement. However, as the submissions of the applicant relied on the history of relevant clauses in that agreement, and dealings between the applicant and Yarra Trams in relation to the question of meal breaks, I will commence by identifying material clauses of earlier industrial instruments.

The 2006 Workplace Agreement 7 The Yarra Trams Union Collective Agreement 2006 was a workplace agreement made under the Workplace Relations Act 1996 (Cth). Clause 16.3 of Part Two of the 2006 Agreement concerned meal breaks, and provided - 16.3 Meal Break Yarra Trams may roster the length of the unpaid meal break on straight shifts for a minimum of 40 minutes and a maximum of 90 minutes regardless of the day of the week. Meal Breaks will be rostered in accordance with the terms of this Agreement. In cases where late running or other delays reduce the time available for the rostered meal break, employees will commence the next portion of work at the scheduled time provided that a minimum of 30 minutes meal break is given. Additional time worked will be included for the purposes of calculating overtime subject to the traffic suspension provisions of the Tramway and Omnibus overtime clause in Appendix One to this Agreement. 8 Appendix One to the 2006 Agreement contained clauses based upon the Tramway and Omnibus Public Transport (Victoria) Award 1992, including clauses relating to meal breaks. Clauses in the same terms relating to meal breaks appear as clause 23 of Appendix One of the 2019 Enterprise Agreement, and I will refer to them later.

The 2009 Enterprise Agreement 9 An enterprise agreement titled the Yarra Trams Enterprise Bargaining Agreement 2009 was approved by Fair Work Australia on 17 November 2009. It was expressed to operate from 24 November 2009, and had a nominal expiry date of 30 June 2012. Clause 15 of Part Two of the 2009 Agreement addressed meal breaks - Meal Break Yarra Trams will roster the length of the unpaid meal break on straight shifts for a minimum of 40 minutes and a maximum of 90 minutes regardless of the day of the week. Meal Breaks will be rostered in accordance with the terms of this Agreement. In cases where a disruption to service occurs on multiple routes disabling normal operation, or where an emergency situation occurs the time available for the rostered meal break may be reduced to a minimum of 30 minutes. An emergency situation is defined as: • tram derailment • tram to tram collision • infrastructure failure • wayside collision • serious pedestrian knockdown • serious tram to motor vehicle collision • unplanned demonstrations • road closure due to crime scene • flood and fire Additional time worked will be included for the purposes of calculating overtime subject to the traffic suspension provisions of the overtime clause in Appendix One to this Agreement. The above provision is not intended to be available for normal everyday disruptions on the network such as late running. 10 The evidence is that clauses corresponding to the above provisions remained in the subsequent 2012 and 2015 Enterprise Agreements covering tram drivers up to the 2019 Enterprise Agreement.

The 2019 Enterprise Agreement 11 The 2019 Enterprise Agreement is divided into three parts, and in addition has three appendices and two schedules. Within Part One of the 2019 Agreement are common conditions. Clause 2.2 of Part One provides that the common conditions are to be read in conjunction with the relevant Parts - 2.2 The Common Conditions (Part One of the Agreement) must be read in conjunction with the relevant Part(s) of the Agreement applying to the workgroup of employees concerned and the relevant conditions contained in their respective Appendix. 12 Clause 2.3 of Part One provides for a hierarchy in the event of an inconsistency between Parts, and between a Part and an Appendix - 2.3 When reading the various Parts and Appendices the following applies: (a) Subject to clause 2.5 below, to the extent of any inconsistency the provisions of Part Two and Part Three prevail over the provisions of Part One. (b) Subject to clause 2.5 below, to the extent of any inconsistency the provisions of a Part prevail over the provisions of an Appendix. 13 Nothing material turns on clause 2.5, which is referred to in clause 2.3 above. 14 Under the heading "Purpose", clause 5 of Part One provides - 5. Purpose 5.1 The Agreement details the terms and conditions of employment for employees covered under clause 2 of the Agreement. 5.2 Other conditions of employment are detailed in the various policies, rules and procedures of Yarra Trams and the individual employment contract. However, those policies, procedures and rules do not form part of this Agreement unless they are explicitly written into the Agreement. 5.3 The parties acknowledge that this is a facilitative agreement which is intended to operate to meet the evolving needs of Yarra Trams, its employees, customers and the State of Victoria. In this context, the parties commit to working cooperatively and without delay to ensure Yarra Trams can: (a) respond to the challenges of a changing network including "future proofing", a greater focus on inter-modality and changing customer needs; (b) continually improve on service delivery including the "whole of journey" experience; (c) maintain a productive workforce; and (d) provide a safe and secure working environment for all employees. 15 Part Two of the Enterprise Agreement is titled "Operations", and it has its own sequence of clauses. Clause 1.1 of Part Two provides that Part Two applies to all employees engaged directly in positions involved in the day to day operation and running of the metropolitan tram network. Clause 1.2 of Part Two addresses the Appendices to the Agreement, and provides - 1.2 Appendices Further terms and conditions of employment for employees covered by this Part (Part Two) of the Agreement can be found in Appendix One or Appendix Two of this Agreement as detailed in the following table: … 16 The table underneath clause 1.2 aligns a number of classifications of employees with either Appendix One or Appendix Two. Tram drivers are aligned with Appendix One. 17 Clause 8 of Part Two is titled "Tram Driver Rostering", and contains detailed provisions relating to such matters as rostered shifts, daily hours, and overtime. In issue is clause 8.6, which provides - 8.6 Meal Break (a) Yarra Trams will roster the length of the unpaid meal break on straight shifts for a minimum of 40 minutes and a maximum of 90 minutes Monday to Friday. (b) The maximum length of a meal break on Saturday and Sunday will not exceed a maximum of 70 minutes, with not more than 10% of shifts to have meal breaks between 61 and 70 minutes inclusive. (c) Meal Breaks will be rostered in accordance with the terms of this Agreement. In cases where a disruption to service occurs on multiple routes disabling normal operation, or where an emergency situation occurs the time available for the rostered meal break may be reduced to a minimum of 30 minutes. (d) An emergency situation is defined as: (i) tram derailment (ii) tram to tram collision (iii) infrastructure failure (iv) wayside collision (v) serious pedestrian knockdown (vi) serious tram to motor vehicle collision (vii) unplanned demonstrations (viii) road closure due to crime scene (ix) flood and fire (e) Additional time worked will be included for the purposes of calculating overtime subject to the traffic suspension provisions of the overtime clause in Appendix One to this Agreement. (f) The above provision is not intended to be available for normal everyday disruptions on the network such as late running. 18 Clause 8.8 of Part Two is titled "Spare Shift", and provides (inter alia) - 8.8 Spare Shift (a) Any employee rostered on a Spare Shift may be required to alter their times of duty, other than start time, without notice to meet the day to day operational requirements of the business. Where it is reasonably practicable notice of such change should be given as early as possible, but in some instances it is recognised that notice may not always be able to be given. An alteration to times of duty may include a change in any or a combination of the following: (i) meal break times and/or duration (ii) shift type (broken to straight). 19 Appendix One is titled "Tram Operations". The opening words of Appendix One provide - APPLICATION OF APPENDIX This Appendix is based upon clauses of the Tramway and Omnibus Public Transport (Victoria) Award 1992. This Appendix applies only to employees to whom it is expressed to apply in the "Appendices" clause of Parts Two and Three of this Agreement. 20 There is a corresponding clause in Appendix Two, which does not apply to tram drivers, and is therefore not material to this proceeding, but which provides that Appendix Two is based upon clauses of the Municipal Offers (Metropolitan Transit Authority) Award 1984. 21 Clause 23 of Appendix One addresses meal breaks, and provides - 23. Meal breaks 23.1 Except in cases of emergency or by the consent of the employee concerned, no employee shall be required to work more than 4-3/4 hours without meal relief. Yarra Trams shall be free to make arrangements with individual employees, with groups of employees or with their representatives, as to the time and place of taking meals. In the absence of any such arrangement, meal relief, as far as practicable, shall be given at the rostered time within five minutes' walk, tram or bus ride of depots or meal relief rooms provided by Yarra Trams. 23.2 Where, through unforeseen circumstances, it is necessary for an employee to work during a meal break, they shall be given meal relief at the earliest possible moment and if no relief is afforded within seven hours, shall be paid time and a half for the meal break worked. 23.3 No meal relief need be provided to employees on all night shifts and the whole shift shall be paid for as time worked. 23.4 Traffic employees shall be allowed a minimum of 40 minutes meal relief. 23.5 Meal relief shall be given where practicable in the order in which traffic employees have taken up duty on morning shifts and in the order in which they finish duty on afternoon shifts. 23.6 In the case of a traffic employee where the walking, tram or bus ride distance from the place of meal relief to the employee's depot or meal relief rooms provided by Yarra Trams exceeds 366 metres, the employee's meal break shall, if they so desire, be extended 10 minutes or, at the employee's option, they may be paid for the actual time in walking to and from the relieving point. 23.7 For traffic employees all time for meal breaks in excess of one hour and up to two hours is to be treated as time worked. 22 Clause 1 of Appendix One defines "traffic employees" referred to in clauses 23.4 to 23.7 to include tram drivers.

The rostering of drivers 23 Much of the following account draws on the evidence in the affidavits of Mr Phillip Altieri, the Assistant Secretary of the Victorian Branch of the applicant, and Mr Trevor Greer, the Manager, Customer Service, of Yarra Trams. There was some common ground in the descriptions of the way in which the rosters work. However, there were also some points of divergence which were identified in a reply affidavit of Mr Altieri affirmed 21 October 2021. Generally, I give more weight to the account of Mr Altieri on those issues, because it was a more detailed and complete account which appeared inherently probable having regard to the surrounding circumstances. As a secondary issue, there was no challenge to Mr Altieri's evidence by cross-examination. Although there was no challenge to Mr Greer's evidence either, the differences between them arose largely because Mr Altieri's evidence was more comprehensive than Mr Greer's evidence. 24 Rostering of drivers at Yarra Trams starts with the preparation of a schedule for each tram route. The schedules also serve an important function in relation to Yarra Trams' accountability to the Government for punctual operations under its contract to operate the tram system. This is monitored in part by the electronic recording of tram arrivals at certain points of a route. 25 Once the schedule for each tram route has been finalised, Yarra Trams allocates shifts to drivers on a depot basis. There are two types of shifts: straight shifts and broken shifts. Clause 8.1 of Part Two of the 2019 Enterprise Agreement provides that shifts may be rostered to provide for work periods of up to 8 hours 15 minutes per day, and up to 41 hours and 15 minutes of work per week. Under clause 8.2 of Part Two, there are minimum daily hours of 7 hours Monday to Saturday, and 6 hours on Sunday and public holidays. Under clause 22 of Appendix One, as far as practicable, rosters are to be arranged to avoid hours of work beyond 9 per day on straight shifts, and spreads of hours beyond 12 per day on broken shifts. 26 After shifts are allocated, a master roster is produced. The master roster for tram drivers at each depot can be viewed by the tram drivers on an electronic screen at the depot. At the commencement of the shift, drivers arrive at their base depot and sign on to commence work. Upon signing on, the system generates and prints what is known as a table card, which provides the particular driver's working schedule for the shift. The table cards set out the commencement and finishing times of the shift, the times at which the driver is expected to arrive at each stop on the route, and the meal break time, which is scheduled as part of the table card. The table cards also show points on the route where there are electronic monitors for the purpose of data collection. Generally speaking, rostered meal break time, when taken, is unpaid, as indicated by the terms of clause 8.6(a) of Part Two. 27 In one of the table cards that was in evidence, the meal break time was scheduled for a precise period of one hour between 8.32 pm and 9.32 pm, after allowing for 5 minutes time to walk to the depot, and another 5 minutes for other duties referred to as "as instructed", to which I will return. The precise times are a product of the master timetable created by Yarra Trams. The table card then identifies what "run" the driver will be doing in that part of the shift following the meal break. 28 Sometimes, it is not possible to adhere to the schedule on the table card. The leading reason is traffic congestion: Melbourne's tram network is shared with other road users and is therefore subject to variance in traffic and other conditions that affect road conditions on a day-to-day basis. Where the schedule is not able to be adhered to, there is a consequential effect on the time at which drivers return to the depot for a rostered meal break. Ordinary day-to-day delays, as distinct from those caused by specific emergency events or major disruptions on multiple routes, were referred to in the evidence as "late running", and I find that this term when used in the relevant industrial instruments has a corresponding meaning. 29 Prior to 5 July 2021, the practice was that if a driver returned to the depot later than scheduled due to late running, the driver was able to request a meal break of the same duration as that scheduled in the table card. For example, if a one hour meal break was scheduled to commence at 8.32 pm, but due to late running was not able to be commenced until 8.45pm, at the request of the driver the meal break could extend until 9.45 pm instead of concluding at 9.32 pm. In order to accommodate such a request, the "Depot Starter" (being the person responsible for the management of drivers at the depot) would have to make arrangements for another driver to cover the first driver's table card so that, as far as practicable, the tram schedule was maintained. Mr Altieri stated in his second affidavit that the measures that might be taken to cover for a driver taking a late meal break included requesting other drivers who had remained at the depot between split shifts, or who had yet to commence, or who had ended a shift, to undertake voluntary overtime to cover for the late meal break of another driver. I referred earlier to a period of "as instructed" time appearing on the table cards. Mr Altieri stated that this time is a period of time that is built into the table card in which the driver can be directed to perform various duties that may be required. I accept Mr Altieri's evidence that this time may be scheduled at the start of a driver's shift, when a driver returns to the depot during the shift, before or after the scheduled meal break, or at the end of the shift. Mr Altieri produced some table cards that demonstrated that "as instructed" time was included in some instances for periods of between just over 20 minutes and just over 40 minutes at the commencement of shifts, and also during shifts, including in one instance a period of 46 minutes prior to a scheduled meal break.

The 2016 correspondence 30 By a letter dated 27 June 2016, the applicant raised with Yarra Trams a question whether drivers who chose to take rostered meal breaks upon arriving late to the meal break due to late running should be penalised in their remuneration if this resulted in them not picking up their next rostered run. The issue was explained in the applicant's letter as follows - We currently have the practice of drivers who are late for meal due to late running being given a minimum 40-minute meal with overtime paid for the amount of late running and an expectation of picking up their next rostered run. Currently any driver who exercises their right to a full meal break after running late and fails to pick up their next rostered run is off the clock or has payment withheld by Yarra Trams until they pick up that rostered run. If the tram was city bound this might amount to 2 hours' loss of pay for exercising the right to their full rostered meal break. 31 The letter referred to material clauses of the 2015 Enterprise Agreement relating to meal breaks, including clause 8.6, which was in substantially the same terms as clause 8.6 of the 2019 Enterprise Agreement. After referring to that clause, and highlighting clause 8.6(f), the letter stated - In summarizing the clause, this passage sets the meal break duration for different days of the week via part (a) and (b). Part (c) enables Yarra Trams to reduce a rostered meal break but ONLY in the circumstance of a defined emergency or where a disruption occurs affecting multiple routes. Part (d) clearly defines what emergency situations are, while part (e) covers that the additional time worked through the emergency situation will be paid to the effected driver at the overtime rate unless subject to Traffic Suspension Provisions. Then we arrive at part (f), which I find the most interesting of all. Part (f) states that this provision and the flexibilities afforded therein of this clause in its entirety, of reducing a drivers' meal break in time and paying them overtime for the additional time worked is not to be used for normal everyday disruptions on the network such as late running. This flexibility is afforded purely for emergencies and where multiple routes are [affected]. (Emphasis in original.) 32 The letter also referred to clause 23 of Appendix One of the 2015 Enterprise Agreement, which was in the same terms as the corresponding clause in the 2019 Enterprise Agreement. As to the effect of clause 23.4, which provided that "Traffic employees shall be allowed a minimum of 40 minutes meal relief", the letter stated - I draw particular attention to the wording of this clause and that [it] sets a minimum standard of 40 minutes (which I assert is a rostering preparation provision) but does NOT provide the tools or ability to reduce a rostered meal break to a minimum of 40 minutes. 33 Yarra Trams responded by letter dated 29 July 2016 as follows (inter alia) - … It is Yarra Trams view that if a driver is late for their meal break due to late running and requests their full rostered meal break, Yarra Trams will make arrangements to allow the driver to take their full rostered meal break. The driver will not be disadvantaged for requesting their full rostered meal break by way of withholding payment until they pick up their rostered run. I have investigated this issue to understand the current arrangements at each of the depots. Throughout my enquiry, I was unable to identify a specific driver that had their pay withheld. I would appreciate if you could provide the details of the drivers that have had their payments withheld after requesting to take their full rostered break when they have returned to their meal location late due to late running. I will investigate these specific instances to ensure that drivers are paid accordingly. 34 There is no evidence that there was any response to the question raised by the last paragraph of the letter set out above.

The operational update 35 On 16 June 2021, the second respondent, who as I mentioned is the Chief Operations Officer of Yarra Trams, sent an email to all tram drivers titled "Operational Update" which notified the drivers of changes to the administration of meal breaks. The email stated (inter alia) - … COVID-19 has had a significant impact on our patronage. To bring passengers back and maintain their trust, we need to provide a great customer experience through reliability of services including reduced cancellations. Unfortunately, Drivers seeking full meal breaks when arriving to the depot late is a cause of tram cancellations. This is no longer in the spirit of the 2016 practice that was agreed between Yarra Trams and the RTBU. From Monday 5 July 2021, Yarra Trams will cease to apply the 2016 meal break practice. The proposed change to this practice is consistent with the terms of the EA. This means that where a Driver returns to the Depot and has partially worked through their meal break due to unforeseen circumstances, the Driver will be: • paid for their hours of work up to the commencement of the unpaid meal break. • given their meal break as initially scheduled, if this does not reduce their meal break to less than 40 minutes in unforeseen circumstances, or 30 minutes where disruptions to normal operations occur [in] an emergency. • expected to return to work at the end of the meal break as rostered and so that the tram assigned on their table card can depart the Depot at the scheduled time. That is, Yarra Trams is not obliged to extend the length of the meal break to make up for the part of the meal break that has been worked. … (Some punctuation changes made, as accepted by all counsel)

The applicant's claims 36 The changes foreshadowed by Yarra Trams in the 16 June 2021 email commenced on 5 July 2021. The applicant disputes the changes, alleging that they were not authorised by the 2019 Enterprise Agreement. Yarra Trams denies this claim, maintaining that the changes accord with the Enterprise Agreement. The second respondent adopted the submissions advanced by Yarra Trams. 37 The applicant alleges that when a driver returns to the depot late due to late running trams, and where the late running trams do not involve a disruption to service on multiple routes which has disabled normal operation, or an emergency situation as defined in clause 8.6(d) of Part Two of the 2019 Enterprise Agreement, Yarra Trams proposes: (i) to not allow the Drivers to take a meal break for the full period of time that has been rostered on each such occasion; and (ii) instead to reduce the meal break to a period of time of not less than 40 minutes. The applicant alleges that this proposal is in breach of clauses 8.6(a), 8.6(b) and 8.6(c) of Part Two of the 2019 Enterprise Agreement, and in consequence that Yarra Trams proposes to contravene s 50 of the FW Act which provides that a person must not contravene a term of an enterprise agreement.

The parties' submissions 38 The issue on which the parties joined was the proper construction of the 2019 Enterprise Agreement, and in particular: clause 2.3 of Part One; clause 8.6 of Part Two; and clause 23 of Appendix One. 39 There was no substantial issue about the relevant principles of construction. The parties referred to the summaries of the applicable principles given by the Full Court in WorkPac v Skene [2018] FCAFC 131; 264 FCR 536 at [197], and to my reasons for judgment in King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]-[130]. It is unnecessary to set out the relevant passages in these judgments. King was reversed on appeal, however the Full Court stated that the exposition of principles was not challenged: King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123; 308 IR 171 at [40]. See also, Shop, Distributive and Allied Employees' Association v Target Australia Pty Ltd [2021] FCA 1038 at [21]-[22] (Banks-Smith J). Much of the guidance given by the authorities in relation to the interpretation of industrial instruments elaborates upon the core principles which direct attention to the language of the instrument having regard to its industrial and statutory context and purpose: see, Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2] and [13] (Gleeson CJ and McHugh J), [30] (Gummow, Hayne and Heydon JJ), and [66] and [96] (Kirby J). Of some relevance to the applicant's case is the extent to which a common understanding of the operation of a provision appearing in successive industrial instruments may be relevant to its construction, and in this respect the applicant relied on the decision of Gray ACJ in Shop Distributive and Allied Employees' Association v Woolworths Limited [2006] FCA 616; 151 FCR 513 at [31], to which I will return.

The submissions of the applicant 40 Primarily, the applicant relied on the ordinary meaning of the text in clause 8.6 of Part Two of the 2019 Enterprise Agreement. The applicant submitted that properly construed clause 8.6 of Part Two: (i) confers an entitlement on the tram drivers to be rostered for and receive unpaid meal breaks of between 40 minutes to 90 minutes duration on Monday to Friday, and 40 minutes to 70 minutes on the weekend; and (ii) precludes Yarra Trams from reducing the rostered meal breaks of a driver who has returned late to the depot due to normal late running. 41 The applicant submitted that under clause 8.6(c) of Part Two, there are two discrete circumstances in which the rostered duration of a meal break may be reduced by Yarra Trams to 30 minutes. The first was "where a disruption to service occurs on multiple routes disabling normal operation", and the second was "where an emergency situation occurs", which situation was defined by clause 8.6(d), and which did not include late running. The applicant submitted that these are the only two circumstances in which the terms of the clause permit Yarra Trams to reduce the duration of rostered meal breaks. 42 The applicant submitted that its construction was given further textual support by clause 8.6(f) of Part Two, which expressly provides that "[t]he above provision is not intended to be available for normal everyday disruptions on the network such as late running". 43 The applicant placed reliance as an aid to construction of the 2019 Enterprise Agreement on the history of corresponding clauses in earlier instruments. In particular, the applicant relied on the terms of clause 16.3 of the 2006 Agreement (set out at [7] above), which made express provision for the reduction in rostered meal times where there was late running, and contrasted this with the form of clause 15 of the 2009 Agreement (set out at [9] above) which was substantially reproduced in successive agreements. 44 As to clause 23 of Appendix One, which also addresses the subject matter of meal breaks for drivers, the applicant submitted that properly construed in its particular context, and in the context of the whole Agreement, clause 23 does not assist Yarra Trams. The applicant submitted firstly that there is nothing in the terms of clause 23 of Appendix One that permits Yarra Trams to reduce the rostered duration of a meal break due to normal late running. Secondly, even if clause 23 of Appendix One did permit Yarra Trams to reduce the rostered duration of a meal break due to normal late running (which was not accepted) it would be inconsistent with clause 8.6 of Part Two, and as such, by operation of clause 2.3(b) of Part One, clause 8.6 of Part Two would prevail over clause 23 of Appendix One to the extent of any inconsistency. The applicant submitted that the history of the relevant provisions also affected the construction to be given to clause 23 of Appendix One, because clause 23 of Appendix One remained the same in all material respects both before and after the relevant changes effected by the 2009 Agreement. 45 Finally, the applicant submitted that there was a common understanding of the meaning of clause 8.6 of Part Two that existed prior to the making and approval of the 2019 Enterprise Agreement. It was submitted that the common understanding was that the duration of a driver's rostered meal break can be reduced only in the two discrete circumstances of "emergency circumstances" (as defined) and "where a disruption to service occurs on multiple routes disabling normal operation", and not as a result of normal late running. The applicant submitted that it should be inferred that the 2009 Agreement was made to reflect the common understanding that meal breaks could not be reduced on the basis of normal late running, and that that common understanding was then continued to be reflected in the subsequent agreements that were made by Yarra Trams for its drivers. The applicant submitted that the 2016 events confirmed the common understanding as reflected in the then equivalent of clause 8.6 of Part Two, and submitted that given the retention of the restriction in the present clause 8.6(f) in successive agreements made since 2009, the court should hold that the agreements made by Yarra Trams since 2009 give effect to the common understanding that meal breaks were not to be reduced on the basis of normal late running.

The submissions of Yarra Trams and adopted by the second respondent 46 Yarra Trams submitted that clause 8.6 of Part Two and clause 23 of Appendix One should be read together. On the construction advanced by Yarra Trams, clauses 8.6(a) and (b) are concerned with the rostering of meal breaks, and not the taking of or entitlement to meal breaks. As for clause 8.6(c), when read together with clause 23 it has the consequences that in the case of disruption to service on multiple routes, or where an emergency situation occurs, the rostered meal break may be reduced to 30 minutes, but otherwise clause 23.4 provides that drivers should be allowed a minimum of 40 minutes for a meal break. Yarra Trams submitted that the effect of clause 8.6(f) was only that clause 8.6(c), which when engaged authorised a reduction to a minimum of 30 minutes, was not available merely because of late running. Yarra Trams submitted that clause 8.6(c) does not define the circumstances in which a rostered meal break might be reduced, and is concerned only with the circumstances in which a rostered meal break may be reduced from the ordinary minimum of 40 minutes to a minimum of 30 minutes. 47 Yarra Trams submitted that the terms of clause 23 of Appendix One provided for flexibility in the orderly taking of meal breaks to accommodate the reality that trams run late, which intrudes upon the meal time designated on the table card. Yarra Trams submitted that clause 23 addressed what is to occur when the commencement of a meal break is delayed as a result of late running, and that one of the material provisions was clause 23.4 which provided for a minimum of 40 minutes for "meal relief". Yarra Trams further pointed to the phrases "as far as practicable" in clause 23.1, "through unforeseen circumstances" in clause 23.2 and "where practicable" in 23.5 of Appendix One in support of the flexibility said to be built into the concept of meal breaks. Connected to this was the proposition that allowance for meal breaks between 40 and 90 minutes accommodated routine instances of late running, which allowed rostered time over 40 minutes to be, in effect, a buffer. 48 Yarra Trams submitted that on its construction, there was no relevant inconsistency between clause 8.6 and clause 23 to be resolved. 49 Yarra Trams further submitted that clause 5.3 of Part One the 2019 Enterprise Agreement required a "facilitative construction" which brought about productive consequences, and that a construction that provided for a meal break time span rather than a fixed period of time made sense in the context of the objective reality that trams run late. Yarra Trams submitted that there was no capricious or unfair outcome as a result of its construction, because the effect of clauses 8.6 and 23 is that all drivers are paid for all time worked, including any work that intrudes onto scheduled meal breaks. 50 Yarra Trams submitted that there was no ambiguity in the relevant clauses that was to be resolved by recourse to evidence alleged to support a common understanding of the proper construction of the clauses, and in any event the 2016 correspondence did not establish any sort of common understanding.

Consideration 51 In my judgment, the construction advanced on behalf of Yarra Trams is the better construction of the 2019 Enterprise Agreement in relation to the circumstances in which meal time may be reduced below the rostered time. 52 The terms of clause 8.6 of Part Two and clause 23 of Appendix One of the 2019 Enterprise Agreement are the product of negotiation and compromise, and seek to balance the competing interests of Yarra Trams and its employees. The starting point must therefore be the text of the provisions, construed in their industrial context. Both clause 8.6 of Part Two, and clause 23 of Appendix One contain terms that relate to Yarra Trams' rostering of meal time, and the drivers' meal entitlements, and the clauses interact and must be read together. When construed together, some provisions are to be construed as leading provisions, and others as subordinate. 53 Clauses 8.6(a) and 8.6(b) oblige Yarra Trams to roster the length of the unpaid meal break for periods of time within the ranges specified. The minimum rostered meal break length is to be 40 minutes, which is consistent with the employees' entitlement to meal relief in clause 23.4 of Appendix One. Clause 23 uses the terms "meal relief" and "meal breaks". While the meanings of those terms are allied, and are capable of overlapping, I do not think the terms are used interchangeably. The term "meal relief" requires no elaboration. The "meal break" can be understood as the time allocated within which meal relief is to be given. The difference is illustrated in the use of the both terms in clause 23.2. 54 Clauses 23.1, 23.2, and 23.4 are important to the rostering and taking of meal breaks. Clause 23.1 provides that in the absence of specific arrangements, meal relief will be given, as far as practicable, at the rostered time. Clause 23.2 recognises that there will be unforeseen circumstances that might result in a driver working during a rostered meal break. There are two main obligations in clause 23 for present purposes. The first is that except in cases of emergency, or with the consent of the employee, no employee is to be required to work for more than 4 ¾ hours without meal relief. The second is that traffic employees are to be allowed a minimum of 40 minutes meal relief. These obligations affect the rostering of meal breaks. 55 Other obligations in clause 23 of Appendix One are also capable of affecting the rostering of meal time as part of Yarra Trams' schedule, such as - (a) the requirement in clause 23.1 that, as far as practicable, meal relief will be given at the rostered time within five minutes travel from a depot or meal relief rooms provided by Yarra Trams; (b) the requirement in clause 23.5 that, where practicable, meal relief shall be given in the order in which traffic employees have taken up duty on morning shifts, and in the order in which they finish duty on afternoon shifts, which presumably is the subject of rostering; and (c) the possibility of a driver extending the meal break time by 10 minutes, as provided for in clause 23.6. 56 The first sentence of clause 8.6(c) provides that "meal breaks" will be rostered in accordance with the terms of the Agreement. Clauses 8.6(c), (d) and (f) provide for the circumstances in which the time available for the rostered meal break may be reduced to a minimum of 30 minutes. Although clause 8.6(f) refers to the "above provision", no party contended that this reference was to be restricted to clause 8.6(e). The context and history of the provision, and in particular its first emanation in clause 15 of Part Two of the 2009 Agreement, where the sub-clauses were not individually enumerated, strongly suggests otherwise. The addition in later versions of the clause of letters to identify sub-clauses is an example of inattentive lay drafting that should not be given such weight as to change the objective meaning of the provisions. 57 Absent any inconsistency, clauses 8.6(c) to (f) are to be construed in the context of clauses 23.1 and 23.4 of Appendix One. I do not consider that there is an inconsistency between these provisions that would invoke clause 2.3(b) of Part One. Rather, clause 8.6(c) when engaged operates as a qualification on clause 23.4, and the requirement to give a minimum of 40 minutes meal relief. A qualification need not amount to an inconsistency. As Bingham LJ remarked in Pagnan SpA v Tradax Ocean Transportation SA [1987] 3 All ER 565 at 574 - It is a commonplace of documentary construction that an apparently wide and absolute provision is subject to limitation, modification or qualification by other provisions. That does not make the later provisions inconsistent or repugnant. 58 In my judgment, clauses 8.6(a) and (b) of Part Two are concerned with the rostering of unpaid meal breaks, but not the entitlement to meal relief, which is principally the subject of clause 23 of Appendix One, and qualified by clause 8.6(c). Clause 8.6(b) illustrates the point because it provides for a maximum length of meal break on Saturday and Sunday, but no minimum. Accordingly, I do not construe clause 8.6 as giving rise to an entitlement to meal relief for the duration of the rostered meal break time. 59 I have had regard to the objective history of clause 8.6 as part of the permissible context: see, City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J); Short v F W Hercus Pty Ltd [1993] FCA 72; 40 FCR 511 at 518 (Burchett J), citing Saraswati v The Queen (1991) 172 CLR 1 at 21 (McHugh J). That history includes clause 16.3 of the 2006 Agreement which expressly permitted the reduction to a minimum of 30 minutes of the time available for the rostered meal break in circumstances that included late running. The change brought about by the 2009 Agreement limited those circumstances to those that are now specified in clauses 8.6(c) and (d), and where late running is specifically excluded by clause 8.6(f). However, I do not regard that objective context as affecting the construction that I favour. 60 I will now address the submissions that were advanced in relation to whether there was a common understanding about the operation of clause 8.6 of Part Two of the 2019 Enterprise Agreement that should inform its construction. Most of the modern authorities that have considered a claim of a common understanding as an aid to construction of an industrial instrument have suggested that caution should be exercised. 61 One of the early cases was the decision of the Full Court of the Australian Industrial Court in Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248, where evidence was received about the conduct of parties under the agreement in issue, and also under predecessor agreements. Spicer CJ at 251 cited the decision of the Privy Council in Watcham v Attorney-General of the East Africa Protectorate [1919] AC 533 as authorising reference to the conduct of parties under an agreement as an aid to construction of an instrument in the event of ambiguity. However, reference to post-contractual conduct as an aid to construction is no longer accepted as a general principle of contractual interpretation: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 at [35] (Gummow, Hayne and Kiefel JJ); Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [11]-[13] (Allsop P), [58] (Giles JA), and [306]-[335] (Campbell JA). The rejection of post-contractual conduct as an aid to contractual interpretation has undermined the authority of Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association: see, Seaman's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445 (J B Sweeney, Evatt and St John JJ); Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452 (Gray J); City of Wanneroo v Holmes at 378 (French J); Sheehan v Thiess Pty Ltd [2019] FCA 1762 at [23] (Colvin J) (appeal dismissed: Theiss Pty Ltd v Sheehan [2020] FCAFC 198). 62 However, the way in which a workgroup or industry conducts itself under successive industrial instruments remains a permissible aid to the construction of a successor instrument in an appropriate case, as the decision of Tracey J in Transport Workers Union v Linfox [2014] FCA 829; 318 ALR 54 illustrates, where the terms of the provision under consideration had been consistently applied in the manner contended for by one of the parties, thereby giving rise to a common understanding. Transport Workers Union v Linfox, together with other authorities on this question were reviewed by Banks-Smith J in Shop, Distributive and Allied Employees' Association v Target Australia Pty Ltd [2021] FCA 1038 at [170]-[180]. 63 In a series of decisions, Gray J emphasised the great care that must be taken in drawing upon a suggested common understanding as an aid to construction: Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11; 149 FCR 209 at [44]; Shop Distributive and Allied Employees' Association v Woolworths Ltd [2006] FCA 616; 151 FCR 513 at [31]; Health Services Union v Ballarat Health Services [2011] FCA 1256 at [77]. The reasons for caution before regard may be had to a suggested common understanding commence from the premise that it is the instrument itself that is to be construed, and any recourse to industrial practices said to amount to a common understanding are no more than part of the context in which the text of the instrument is to be construed. Industrial practices do not take the place of the terms of the instrument. There is also the need to maintain coherence with other principles, including that: (1) usually, recourse to extrinsic matters cannot displace the clear meaning of text; (2) the subjective understanding of individuals is rarely relevant to objective meaning; (3) this is also the case in relation to collective agreements where surrounding circumstances might have to rise to the level of being notorious or known by those intended to be bound by the instrument (Sheehan v Thiess Pty Ltd at [22] (Colvin J)); and (4) parties cannot by words or conduct contract out of, or waive the terms of an enterprise agreement, which has statutory force: Josephson v Walker (1914) 18 CLR 691 at 700 (Isaacs J); Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; 99 FCR 95 at [17]-[25] (French J); Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; 121 IR 250 at [25]-[35] (Goldberg J); ACE Insurance Ltd v Trifunovski [2011] FCA 1204; 200 FCR 532 at [135]-[142] (Perram J); Fair Work Ombudsman v Foot and Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242 at [892] (Katzmann J). 64 I do not consider the exchange of correspondence between the applicant and Yarra Trams in 2016 that was relied on by the applicant carries much weight in construing clause 8.6 of Part Two and clause 23 of Appendix One of the 2019 Enterprise Agreement. The letter from the applicant to Yarra Trams dated 27 June 2016 takes the form of a submission to Yarra Trams in relation to payment once the term of a scheduled meal break has ended, and the driver is awaiting the next run. The letter takes as an assumption that where drivers arrive late as a result of late running, some might choose to take a full rostered meal break, which was said to be for a minimum of 40 minutes. I do not consider that the contentions in the letter are sufficiently precise, or that the evidence of any practices that might be implicit in the letter are sufficiently strong to have any material influence over the question of construction that arises in this proceeding. Nor do I consider that the response from Yarra Trams of 29 July 2019 speaks to the question of construction. While Yarra Trams did say that it was its view that if a driver was late for a meal break due to late running and requested the full rostered meal break, Yarra Trams would make arrangements to allow the driver to take their full rostered meal break, this statement had a promissory flavour to it, and was not sufficiently connected to the proper construction of the relevant clause of the industrial instrument. 65 Standing back, the construction of clause 8.6 that I favour would not have absurd results: cf, Amcor Ltd v Construction, Forestry, Mining and Energy Union at [131] (Callinan J). The Agreement concerns running a tram network where late running is a normal everyday occurrence, so it seems improbable that rostered meal break times to accommodate minimum unpaid meal relief of 40 minutes meal breaks should lack the flexibility to reasonably accommodate it. Drivers are entitled to be paid for any time they work into their rostered meal break due to late running. As I have mentioned, there is no inconsistency between clause 8.6 of Part Two and clause 23 that falls to be resolved. 66 The final point is to return to the question that was fixed for separate trial, and to the terms of the question to the extent that it picks up the relevant paragraphs of the applicant's statement of claim. Paragraph 23 of the statement of claim alleges - 23. By proposing to breach … clauses 8.6(a), 8.6(b) and 8.6(c) of Part 2 of the Enterprise Agreement Yarra Trams proposes to contravene s.50 of the FW Act. 67 As I have endeavoured to explain, clauses 8.6(a) and (b) are concerned with rostering. There is no proposal by Yarra Trams to contravene those provisions. As for clause 8.6(c), it does not impose any relevant obligations on Yarra Trams in relation to meal relief, but operates as a qualification on other obligations, and in particular the obligation under clause 23.4 of Appendix One to allow a minimum of 40 minutes for meal relief.

Conclusion 68 I conclude that Yarra Trams does not propose to contravene s 50 of the FW Act and the relevant provisions of the 2019 Enterprise Agreement by altering entitlements to meal breaks for tram drivers in the manner alleged by the applicant. Accordingly, I answer the separate question: no. 69 I will order that the parties confer and present proposed orders to give effect to these reasons and for the further conduct of the proceeding. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.