Fair Work Act 2009

s.739 - Dispute resolution

• [1] This is an application by the Australian Rail, Tram and Bus Industry Union (RTBU), for the Fair Work Commission (Commission) to deal with a dispute with Keolis Downer Northern Beaches Pty Ltd (KDNB) pursuant to the KDNB Bus Operations Enterprise Agreement 2021 (the Agreement).

• [2] KDNB has operated passenger buses on Sydney's Northern Beaches routes on behalf of Transport for NSW (TfNSW) since October 2021. Prior to that time, these routes were operated by the State Transit Authority (STA), an agency of the New South Wales (NSW) Government. The RTBU represents bus operators (drivers) and related employees employed by KDNB.

• [3] There is no dispute between the parties that bus operators have generally been rostered to work shifts of between seven and nine hours by STA prior to October 2021 and since KDNB took over the routes in October 2021. The exceptions to this are when bus operators operate train replacement buses or charter services and work on New Years Eve.

• [4] On 21 February 2025, KDNB informed the RTBU that it proposes to increase the length of rostered shifts to in excess of nine hours on all days of the week, as required for the timetable. The RTBU placed the matter in dispute on 25 February 2025.

• [5] The RTBU contends that KDNB is not permitted to introduce the change as clause 28.5 of the Agreement restricts the length of time of a rostered shift to nine hours. KDNB believes that the additional hours will constitute overtime and are not restricted by clause 28.5 of the Agreement.

• [6] There is no dispute between the parties that the dispute resolution procedure has been followed, and that the Commission has jurisdiction to determine the matter pursuant to s.739 of the Fair Work Act 2009 (Cth) (FW Act).

• [7] In summary, I have found that clause 28.5 of the Agreement restricts the length of time of a rostered shift to nine ordinary hours but does not limit the amount of overtime that can be performed as part of the shift. However, as the dispute appears to extend beyond the proper construction of clause 28.5 and to whether KDNB should roster shifts greater than nine hours, I believe that the dismissal of the application at this stage would be premature. In these circumstances, I propose to list the matter for directions and to determine whether further steps are required to conclude the dispute after hearing from the parties.

• [8] The RTBU filed witness statements of Mr David Babineau and Mr Lance Fenner who were not required for cross examination. Mr Babineau is the Divisional Secretary of the Tram and Bus Division of the NSW Branch of the RTBU.[1] Mr Fenner is employed by KDNB as a bus operator at the Brookvale Depot and is a RTBU delegate.[2]

• [9] Mr Babineau explained that on 1 July 2018, Region 6 of the Sydney Metropolitan Bus Service Contract (SMBSC) was taken over by Transit Systems (TSA) following a competitive tender by TfNSW. Previously, SMBSC Regions 6-9 were operated by the STA and bus operators employed by the STA were covered by an award made by the Industrial Relations Commission of NSW called the State Transit Authority Bus Operations Enterprise (State) Award 2021 (the Award).[3]

• [10] Mr Babineau explained that following TSA's acquisition of the contract, TSA created a two-tiered workplace, with different and inferior conditions for new employees.[4] Mr Babineau said that it took several years of prolonged and intensive industrial activity to move TSA to a position where they were willing to work with affected unions to consolidate operational differences between the two workgroups.[5]

• [11] The NSW Government subsequently announced that it would privatise the whole of the metropolitan bus network, region by region.[6] Tenders for the privatisation of SMBSC region 8, which covers the Northern Beaches area, were released on 24 June 2020.[7] KDNB submitted a successful tender and took over management of bus operations for Region 8 of the SMBSC on 31 October 2021.[8]

• [12] The RTBU became concerned about the possibility of further incidents of a two-tiered workforce occurring. Consequently, it adopted a strategy where it agreed that RTBU members would not take any protected industrial action in relation to the negotiation of a new enterprise agreement with KDNB and accept pay rises in accordance with the wage price index if KDNB agreed to replicate the terms of the Award in the agreement.[9] Mr Babineau said that the Award was designed over decades to work in conjunction with the STA Roster Clerk Guide and the STA Payroll Manual.[10]

• [13] Mr Babineau said that it was understood that the process of reaching agreement with KDNB about the terms of an enterprise agreement was not a negotiation in the traditional sense and that neither party would advance new claims. Discussions about the enterprise agreement were limited to changes required by the movement from the New South Wales to Federal jurisdictions, such as complying with the NES, and name changes to reflect the new employer.[11]

• [14] Mr Babineau said that Mr Steve Schofield, lead negotiator for KDNB, committed at meetings on several occasions that there would be no major operational changes that deviated from previous STA practice. There was no exclusion of shift parameters from this understanding.[12]

• [15] Mr Babineau said on a few occasions he spoke to Mr Schofield when the RTBU was concerned that local management had overreached the understanding that there would be no major operational changes that deviated from previous STA practice. On each occasion the point of dispute was resolved almost immediately with reference made to the previous commitment about operational changes. Mr Babineau said that following Mr Scholfield's departure, the previous understanding appeared to erode in significance to KDNB and there appeared to be no one who stepped in as an accountable authority in regard to the RTBU/KDNB relationship.[13]

• [16] Mr Fenner previously worked for STA as a bus operator until KDNB won the contract to provide bus services on the Northern Beaches in approximately October 2021 and his employment was transferred to KDNB at that time.[14]

• [17] Mr Fenner said that when he was employed by STA, his shifts were typically seven to nine hours in duration. Mr Fenner said that at STA, all shifts were shown on a roster, and all shifts on the roster were between seven and nine hours. Mr Fenner said that unless it was an emergency and he could not be signed off, he would never work a shift in excess of nine hours, including rostered or pre-planned overtime.[15]

• [18] Mr Fenner said that he did not see any shifts rostered that were less than seven hours. Mr Fenner said that this was an important condition as short shifts at peak times are superficially attractive to bus providers, but are not liked by employees. Mr Fenner was involved in negotiations for the Agreement and said that there was no claim by either party during these negotiations to alter this arrangement.[16]

• [19] Mr Fenner said that the only time a shift would extend beyond nine hours would be in circumstances where there is 'charter work' or a 'special charter'. When this was required, STA would consult with the RTBU and members. Other examples of this type of arrangement would be rail work shifts, Easter show shifts, and sports events. When this arrangement was used, 'stand by' time was written into the shift. 'Stand by' was used in conjunction with 'crib breaks', which were used to allow bus operators to take breaks and manage fatigue.[17]

• [20] Mr Fenner said that the Agreement, and the Award before it, contained a concept of voluntary overtime. Mr Fenner said that voluntary overtime, as opposed to mandatory overtime, is overtime that is worked on a voluntary basis only. It is not 'rostered' and is generally accepted to be easier to refuse. Mr Fenner said that any time worked after 8 hours and 15 minutes is 'rostered' or mandatory overtime. Mr Fenner said that a shift rostered of nine hours, which presently occurs as an ordinary shift, contains 45 minutes of rostered overtime and that any time worked beyond the 'rostered' ordinary hours of a shift, is voluntary overtime.[18]

• [21] Mr Fenner said that voluntary overtime is typically added to a shift or offered to a bus operator at the start or end of their shift for the purposes of extending an existing shift beyond what is rostered. However, sometimes a bus operator arrives at work to find their shifts changed without notice and are told they need to go out on the road, with minimal genuine opportunity to refuse. Mr Fenner said that bus operators often feel obliged to accept voluntary overtime. Some bus operators are happy to do overtime in most circumstances, while others already feel fatigued with their existing workload.[19]

• [22] Mr Fenner said that many bus operators feel pressured to accept any overtime and worry that refusing could lead to trouble or repercussions. It can be difficult for a bus operator to refuse voluntary overtime when it is presented to them on short notice.[20]

• [23] Mr Fenner said that overtime is not typically included in the base roster; it gets added when shifts are changed due to dropped shifts or work needs. Mr Fenner said that he believes that building overtime into the rosters will increase fatigue for bus operators. Shifts of nine hours or less are being extended frequently, and with minimal to no consultation in advance, by use of 'voluntary overtime' to meet service demands on the Northern Beaches. Mr Fenner said that bus operators are already working long shifts, particularly 12-hour shifts which are often required on Fridays or shifts lasting 10.5 to 11 hours on other days. This occurs through the use of voluntary overtime which extends existing rostered shifts.[21]

• [24] Mr Fenner said that driving a large bus through suburban and inner-city traffic for twelve hours is exhausting. Mr Fenner said that it might be possible to do a 12 hour shift once or twice a week, but Mr Fenner would be uncomfortable if it occurred more frequently, or if such shifts were more difficult to refuse than they already are. Mr Fenner said that increased fatigue could lead to a higher risk of accidents, poor decision-making, and burnout. Mr Fenner said most bus operators are already working nine-hour shifts, and if overtime is 'rostered', they may feel obliged to take it as there is no clear or explained procedure for refusing rostered overtime.[22]

• [25] The dispute has been raised pursuant to clause 92.1 of the Agreement which provides:

92.1 When the Parties to this Agreement are in dispute with either of the Unions or Employer over any issue that directly affects the interests of any of the Parties, the dispute will be dealt with in accordance with this clause.

92.2 In the first instance, any grievance, which is local in nature, and which will not impact on other locations, should be settled at the workplace between the employee and the local manager (that is, the employee's immediate manager). Where practical, a genuine attempt to resolve the dispute should be made within 24 hours of the dispute being raised.

92.3 If the grievance cannot be resolved as provided for in 90.2 the local delegate or employee is to present the Depot/Unit Manager with a notice of dispute outlining the specific nature of the dispute. The Depot/Unit Manager will discuss the matter with the local union/s delegate/s or employee as soon as practicable.

92.4 If the dispute is not resolved as provided for in 92.3 (or if the subject matter of the dispute is not local in nature), the dispute should be referred to the appropriate Managing Director Northern Beaches, and may also be referred by an employee or union delegate to a union official, who must attempt to resolve the dispute.

92.5 Nothing in 92.3 or 92.4 prevents the appropriate Manager or Managing Director Northern Beaches agreeing (either because the issue is of KDNB-wide significance, involves the interpretation of a policy or Industrial Instrument, or for some other reason) with an employee, a union delegate, or a union official, to refer the matter for resolution to the Principal Manager, Employee Relations, in conjunction with the employee involved, or a union delegate or union official.

92.6 If a dispute remains unresolved, either party may refer the matter to the Fair Work Commission (FWC) for conciliation and, if necessary, arbitration.

92.7 Subject to any contrary agreement between KDNB and the employee or Union involved, any individual step in the process must take no more than five working days to complete; and that in the case of each step, attempts should be made to hold discussions within two working days of commencing the step.

92.8 Any dispute that is still unresolved, after having been progressed in accordance with the steps in this clause, is not further referred by either KDNB, the employee, or the union for a period of five working days after the last step, will be deemed to be no longer a matter in dispute.

92.9 Nothing in this clause prevents the making of an agreement to refer a dispute to a step other than the one next in sequence, in order to accelerate resolution or for some other reason; or the reference of a dispute to the relevant Industrial Tribunal for urgent resolution.

92.10 While a dispute is being dealt with under one of the preceding paragraphs in this clause, work must continue without disruption. Until the matter is determined at first instance, work practices, which existed prior to the dispute, shall apply, except where it involves the application of provisions in the Agreement.

92.11 The Parties acknowledge that, where a dispute involves a matter where a genuine, serious and immediate risk is posed to the health or safety of any person, it may not be practical to follow the procedures in this clause in attempting to resolve the dispute; and that an urgent reference to Safe Work NSW may be required.

• [26] The Agreement was approved with undertakings which include the following:

The reference to 'any issue that directly affects the interests of any of the Parties' shall be taken to include any disputes relating to the Agreement and/or the NES'.

• [27] In the Form F10 - Application for the FWC to deal with a dispute in accordance with a dispute settlement procedure filed by the RTBU, the RTBU alleged that the proposal by KDNB to roster shifts greater than nine hours contravened various clauses of the Agreement, including clause 28.5. In this respect, the RTBU stated that clause 28.5 does not necessarily prohibit the offering and mutual acceptance of voluntary overtime on a daily basis but it prohibits the construction of a roster which builds in such overtime as part of an employee's ordinary hours, as proposed by the KDNB.[23]

• [28] In correspondence exchanged between the RTBU and KDNB about the dispute pursuant to clauses 92.4 and 92.5, the RTBU advised that shifts greater than nine hours raise compliance issues with fatigue requirements[24] and referred to previous advice by KDNB that it had no intention of amending rostering practices from Monday to Saturday.[25]

• [29] Having regard to this correspondence between the parties, it appears to me that the dispute extends beyond the proper construction of clause 28.5 and to whether KDNB should roster shifts greater than nine hours (even if clause 28.5 permits it to do so). It seems to me that this is a matter which the Commission is likely to have jurisdiction to deal with as it is an 'issue that directly affects the interests of any of the Parties'.

• [30] However, the RTBU has approached the arbitration of the dispute not on this basis but on the narrower question of whether clause 28.5 restricts the length of time of a rostered shift to nine hours.

• [31] Clause 28 of the Agreement deals with hours of work and provides:

28.1 Subject to the provisions of this clause, a full-time Employee shall be entitled to a minimum payment of 38 hours per week exclusive of penalty allowances.

28.2 Where, through absence from duty on any day or part thereof, time short of the standard hours of employment per week is worked, payment shall be reduced by the amount of lost time only.

28.3.1 The provisions of this subclause apply to all full-time Employees covered under this Agreement, except those covered under subclause 28.4.

28.3.2 Except as provided in 28.3.3, the ordinary hours of duty of each weekly period, excluding Sunday, shall be 38 hours divided into not more than five shifts.

28.3.3 Ordinary hours of duty may be worked to provide for 152 hours work in a four-week cycle, excluding Sundays. This enables Employees to have one day off duty during that cycle by accruing additional working time on other working days. Such hours to be arranged within shift limits specified in 28.5. Payment in these circumstances is to be made on an averaging basis of 76 ordinary hours a fortnight.

28.4 The provisions of this subclause apply to the classifications of Bus Cleaner, Sign-on Clerk and Conductor.

28.4.1 Except as provided in 28.4.2, the ordinary. hours of duty of each weekly period, including Sunday, shall be 38 hours divided into not more than five shifts.

28.4.2 Ordinary hours of duty may be worked to provide for 152 hours work in a four-week cycle. This enables employees lo have one day off duty during that cycle by accruing additional working time on other working days. Such hours to be arranged within shift limits specified in 27.5. Payment in these circumstances to be made on an averaging basis of 76 ordinary hours a fortnight.

The ordinary hours of duty on any shift shall be no greater than nine hours and no less than seven.

On any broken shift portion the ordinary hours of duty shall be no greater than five.

28.7 The maximum spread of hours on any broken shift shall be 12.

No Employee shall be called upon to begin a new shift without having been off duty for at least ten consecutive hours, and no deduction of pay is to be made for ordinary lime off duty occurring during this absence.

28.9 Hours of work before and after meal break - Straight and Broken shifts.

28.9.1 Straight shifts - where practicable a minimum of three hours shall be performed on either portion before or after meal relief.

28.9.2 Broken shifts - where practicable a minimum of three hours shall be performed on either portion of such shifts with no break without pay in a day's duty to be less than two hours.

28.10 'Penalty payments' - when time worked is subject to more than one extra rate of payment, the employer shall not be obliged to pay more than double time.

• [32] Clause 29 deals with working on Saturday and Sunday and provides:

29.1 Ordinary time worked on Saturdays shall be paid for at the rate of time and a half.

29.2 Time worked on Sundays will stand alone and shall be paid for at the rate of double time.

29.3 Notwithstanding anything provided for elsewhere in this Agreement, the Employer shall not be required to pay more than double time in respect of any work performed between midnight on Saturday and midnight on Sunday.

• [33] Clause 31 deals with overtime and provides:

31.1 Subject to sub-clause 31.2 an Employer may require an Employee to work reasonable overtime at overtime rates.

31.2 An Employee may refuse to work overtime in circumstances where the working of such overtime would result in the Employee working hours which are unreasonable having regard to:

b. the Employee's personal circumstances including any family responsibilities;

a. in excess of eight hours fifteen minutes in any shift;

c. in excess of 40 hours in any week when five shifts are worked, or in excess of 32 hours in any week when four shifts are worked, when such hours are worked on the basis of 152 hours/nineteen shifts in a four-week work cycle,

shall stand alone and be paid for at the rate of time and a half for the first three hours and double time thereafter.

31.4 Payment for overtime shall be calculated upon whatever alternative gives the greater amount.

31.5 An Employee called upon to work overtime beyond the normal rostered shift after 11.30 pm and before

31.6 5.30 am shall, upon request, be provided by the Employer with transport to or from the Employee's place of residence.

• [34] Clause 32 deals with working of voluntary overtime and provides:

32.1 Subject to any statutory or regulatory limits on driving hours and clause 75 (Fatigue Management), a Bus Operator may work voluntary overtime.

32.2 Where voluntary overtime is worked on a Sunday and the shift is less than seven hours, the voluntary overtime will not attract shift build up time.

32.3 KDNB will establish a record book at each depot, in the Duty Office, for all permanent staff wishing to do additional duties/Voluntary Overtime on the day.

32.4 Should additional work be allocated, it is to be allocated to full-time staff in the first instance. If no full­ time employee is available, then a part-time employee, and if no part-time employee is available, then casual Employees may be allocated the additional duties.

• [35] Clause 78 deals with fatigue management and provides:

78.1 Fatigue management principles apply to all employees covered by this Agreement.

78.2 No employee will be permitted to work more than 12 hours in any 24-hour period.

78.3 An employee must have a total of 12 hours rest in every 24-hour period, of which 10 hours must be consecutive between shifts.

78.4 No employee will work more than 24 days in a 28-day period.

78.5 No employee will work more than 12 days straight.

78.6 A 24-hour period commences from the time of the first sign on.

78.7 No employee will work or be required to work more than five hours straight without a break.

• [36] The RTBU submitted that the dispute is about the correct interpretation of clause 28.5, whether it operates as a cap on total shift length or whether it simply limits non overtime hours.

• [37] The RTBU contended that the reference in clause 31.3 to overtime being paid in respect of all time worked in excess of eight hours and 15 minutes in any shift suggests that a nine hour shift in clause 28.5 will comprise eight hours and 15 minutes ordinary time and 45 minutes overtime. As a nine hour shift will always include overtime, this establishes that 'ordinary hours of duty' refers to shift length and not ordinary hours. There is an irreconcilability between the reference to nine ordinary hours of duty on any shift in clause 28.5 and the rate at which overtime is paid.

• [38] The RTBU submitted that in the alternative, an ambiguity arises as to whether the expression 'ordinary hours of duty on any shift' refers to:

• ordinary i.e. non-overtime hours, such that shift lengths can be longer if rostered overtime is added; or
• the maximum length of any rostered shift.

• [39] The RTBU submitted that the first interpretation is available if the clause is read in isolation. However, it cannot be correct when the surrounding context is considered and in particular, clause 31.3. The RTBU submitted that the key contextual difficulty is that unusually, there is no cap on extended shifts in the Agreement although bus driving is heavily concerned with fatigue management, hours of work and hours of driving times.

• [40] The RTBU also submitted that the first interpretation is also inconsistent with the concept of voluntary overtime. Clause 31 with its right to refuse overtime is consistent with an ad hoc arrangement where overtime can be offered and accepted rather than being built into a roster which is what KDNB is proposing. As a bus operator cannot work nine 'non-overtime' hours, 'ordinary hours of duty' must refer to work that has been rostered and planned. Clause 25.8 does not prevent overtime being planned or worked but it does prevent a bus operator being required on a systemic basis to work overtime which would result in a shift being longer than nine hours.

• [41] The RTBU submitted that the shift limits set by clause 28.5 necessarily contemplate, and encompass, overtime hours at the upper end. This is consistent with the provisions of clause 28.3 and in particular the RDO system at clause 28.3.3. Accordingly, although clause 28.5 uses the language of 'ordinary hours' it encompasses the full length of shifts as rostered, and caps these at nine hours. Additional overtime is available, but can be refused under clause 31.2.

• [42] The RTBU submitted that it relied upon commitments by KDNB during negotiations for the Agreement that it would adhere to current conditions and made compromises based on those commitments.

• [43] The RTBU submitted that the practice at the time that the Agreement was negotiated was that no shift was rostered to be more than nine working hours, including rostered overtime. That practice is evidence of how the clause was understood by the parties to operate having regard to the two operations manuals, the STA Roster Clerk Guide (the Roster Guide) and the STA Payroll Reference Manual (the Payroll Manual).

• [44] The RTBU submitted that in the Roster Guide, there is a reference to three types of duties, 'Broken Duty', 'Straight Duty' and 'Part-time Duty' which refer to broken shifts, shifts which are not broken shifts, and shifts performed by part-time employees respectively.[26] The Roster Guide states that:

All duties can only work a maximum of 5 hours in any one portion. Base Duties can work up to a maximum of 9 hours' work time. Charter Shifts can work over 9 hours and up to 12 hours on Bus Hiring or Special Events.[27]

• [45] The RTBU noted the Roster Guide's reference to 'work time' rather than ordinary time or overtime. The RTBU also noted that the ability for Charter Shifts to be worked over 9 hours and up to 12 hours should be viewed in the context that this was in relation to 'sign on and sign off' which is different to working time because of breaks between shifts. Further, the Agreement requires that the maximum shift portion of charter work is of five hours duration with long breaks paid as crib time.

• [46] The RTBU drew the Commission's attention to provisions in the Payroll Manual which deal with 'build up' of payments as follows:

Full time employees are guaranteed 40 hours per week plus any time worked beyond 8 hours 15 minutes per day Monday to Saturday, less any time lost...if the employee's rostered hours do not meet the guarantees outlined above, their payments are built-up accordingly.[28]

• [47] The RTBU explained that this provision was in place to ensure that pay of bus operators is maintained despite fluctuations in the roster.

• [48] The RTBU also pointed to the sections on overtime and penalty rates in the Payroll Manual. The Payroll Manual states that shift penalties are only applied up to the first 8 hours 15 minutes of the normal rostered shift. Overtime is defined as:

Overtime may be unplanned work that occurs after the scheduled roster finishing time or planned overtime which forms part of a rostered shift.[29]

• [49] The Payroll Manual relevantly provides as follows in relation to situations where overtime is payable and the quantum paid:

Time worked beyond 8 hours 15 minutes in any shift is paid at the rate

200% for time worked in excess of the first 3 hours.[30]

Daily Overtime Saturday, Sunday and Public Holidays

All time worked beyond 8 hours 15 minutes on a Saturday, Sunday or a Public Holiday is paid at the rate of 200%.[31]

Overtime worked on a voluntary basis stands alone and is paid at the rate of:

200% for time worked in excess of the first 3 hours.

Bus Operators are employed on a six-day roster Monday to Saturday and all rostered work on Sundays is voluntary and is therefore treated under the VOT conditions i.e. 200% for all time worked.[32]

Weekly overtime is payable when the basis for calculation is to a greater advantage to the employee than the conditions applicable to daily overtime.

Time worked in excess of 40 hours in any week (or in excess of 32 hours when an ADO is rostered) is paid at the rate of 150% for the first three hours and 200% for time worked beyond the first three hours.

Time worked in excess of 38 hours in any week (as there is no ADO) is paid at the rate of 150% for the first three hours and 200% for time worked beyond the first three hours.

DOC s VOT, overtime, Sick Leave or any unpaid leave are not included as normal hours when calculating weekly overtime.

If the calculation for weekly overtime is greater than the calculation for daily overtime the employee is paid the difference under the Pay Code WKOT - Weekly Overtime[33]

• [50] The RTBU submitted that these provisions show that the cap on ordinary hours in a day is eight hours and 15 minutes.

• [51] The RTBU submitted that if the Commission finds that the language of clause 28.5 is ambiguous, the Commission may have regard to the 'common understanding' of the parties in relation to the meaning of the words. The RTBU submitted that there was a common understanding, the Commission can be satisfied of what it was and that it shapes the interpretation of clause 28.5 in that it allows the meaning of the contested words to be understood.

• [52] The RTBU submitted that the Commission should draw an inference about the common understanding of the parties from the way in which clause 28.5 has been applied, in that the practice of both STA and KDNB has been to limit rostered shifts to nine hours.

• [53] KDNB submitted that the issue for determination is whether a shift can be more than nine hours, not whether it should be.

• [54] KDNB submitted that on a proper construction, applying well-settled interpretative principles, clause 28.5 regulates ordinary hours of duty only. Shifts may exceed nine hours, provided the additional time is paid at overtime rates under clause 31. This construction:

(a) gives effect to the language of clause 28.5 in its textual and industrial context;

(b) preserves the operation of the clause 31 overtime regime;

(c) avoids redundancy or incoherence between provisions; and

(d) reflects the Agreement's practical and industrial purpose.

• [55] KDNB submitted that when applying those principles, it is clear that:

(a) 'ordinary hours of duty on any shift' does not mean 'total rostered hours';

(b) the Agreement distinguishes between those two concepts, including by regulating them separately; and

(c) clause 31.3 would not exist in its current form if clause 28.5 were a hard limit.

• [56] KDNB submitted that the structure and content of clause 28 confirms that it deals solely with the regulation of ordinary hours on a shift. The ordinary meaning of 'ordinary hours' in industrial parlance and within the Agreement refers to hours that are not overtime.

• [57] KDNB submitted that on a plain reading, clause 28.5 does not prohibit shifts exceeding nine hours. Instead, it sets the upper and lower bounds for the ordinary hours on any shift which is a common industrial drafting approach consistent with the broader structure of the Agreement.

• [58] KDNB submitted that clause 31.3 expressly contemplates time worked beyond nine hours and prescribes rates for up to three hours of overtime (and thereafter). If clause 28.5 operated as a total shift cap, then no employee could lawfully work more than 45 minutes of overtime (mandatory or voluntary), rendering the stepped overtime structure in clause 31.3 largely inoperative and redundant.

• [59] KDNB submitted that the Agreement also contains a fatigue management framework at clause 78.2 which operates independently of clause 28.5 and includes an express outer limit on total working hours. Clause 78.2 provides that no employee may work more than 12 hours in any 24-hour period.

• [60] The principles in relation to the construction of enterprise agreements are well established. Enterprise agreements are to be construed as practical instruments that will apply to the working conditions known to employers and employees who work in the circumstances to which the instrument will apply.[34] The interpretation of an enterprise agreement begins with a consideration of the natural and ordinary meaning of its words. The words are to be read as a whole and in context. Ambiguity is to be resolved by a consideration of the history and subject matter of the award. Consideration of negotiations is of dubious assistance and evidence of the conduct of the parties subsequent to the making of the award cannot be used to construe it.[35]

• [61] Narrow or pedantic approaches to interpretation should be avoided. The search is for the meaning intended by the framers of the document, bearing in mind that the framers were likely of a practical bent of mind. They may have been concerned with expressing an intention in ways understood in the context of the relevant industry or industrial relations environment. The document can be read to give effect to its purpose, having regard to the industrial context despite inconsistencies which might give rise to a different reading.[36] The main guides to construction are text, context and purpose and there is utility in bearing in mind the facts as they are known at the time the instrument is drafted.[37]

• [62] The history of provisions of an industrial instrument may demonstrate that particular expressions have been the subject of interpretation by the courts or industrial tribunals, which may then be taken to have an accepted meaning when, in the same or a similar context, they find their way into later instruments. Context may shed light on the proper meaning to be given to expressions that take their colour from the industrial context.[38]

• [63] However, it may not be appropriate for surrounding circumstances to be brought to account unless they rise to the level of matters that would be notorious or known to those intended to be bound by the instrument who did not participate in the negotiations or dealings by which the terms were formulated.[39]

• [64] Clause 28.3 has a heading 'Employees on a Six Day Roster'. Clause 28.3.1 states that the provisions of clause 28.3 apply to all full-time employees covered by the Agreement, except those covered by clause 28.4. Clause 28.4 applies to the classifications of bus cleaner, sign-on clerk and conductor. As clause 28.4 does not apply to the role of bus operator, it follows that clause 28.3 applies to this role.

• [65] Clauses 28.3.2 and 28.3.3 of the Agreement set out the 'ordinary hours of duty' for employees including bus operators. These may be either:
  • 38 hours a week divided into a maximum of five shifts worked Monday to Saturday (clause 28.3.2); or
  • 152 hours work in a four-week cycle, worked Monday to Saturday, which enables employees to have one day off duty during that cycle by accruing additional working time on other working days. Such hours to be arranged within shift limits specified in clause 28.5.

• [66] The expression 'ordinary hours of duty' is used throughout clause 28. In clauses 28.3.2 and 28.3.3, it describes a 38 hour week and a 152 hour four-week cycle respectively. 152 hours divided by four is 38 hours. A full-time employee is described by clause 8.1 of the Agreement as 'employed to work 38 ordinary hours per week'. On this basis, I find that the expression 'ordinary hours of duty' means 'ordinary hours' in clauses 28.3.2 and 28.3.3. This leads to the question of whether 'ordinary hours of duty' has a different meaning in clause 28.5. The RTBU submitted that 'ordinary hours of duty' is not a defined term so it is possible that the expression does not have a consistent meaning where it is used throughout the Agreement.

• [67] In determining whether 'ordinary hours of duty' in clause 28.5 refers to 'ordinary hours' a relevant consideration is whether it is possible to roster a shift of nine ordinary hours under the Agreement. Under clause 28.3.2, ordinary hours of duty must be 38 hours a week divided into a maximum of five shifts. There is no requirement for the shifts to be of equal length. If KDNB provided an employee with one rostered shift per week of nine ordinary hours, KDNB could roster four other shifts of 7.25 ordinary hours each. If the shift length requirements of clause 28.5 refer to ordinary hours, this arrangement would meet those requirements and the requirements of clause 28.3.2.

• [68] Under clause 28.3.3, ordinary hours of duty must be 152 hours over a four week period divided into 19 shifts (to allow for one day off during the cycle). This results in an average shift length of 8 hours. If KDNB provided an employee with 17 rostered shifts of 8 hours, one rostered shift of 9 hours and one rostered shift of 7 hours, over a four week period, this arrangement would also meet the requirements of clause 28.5 if the shift length requirements refer to ordinary hours as well as the requirements of clause 28.3.2.

• [69] The next issue which requires consideration is the interaction between clause 28 and clause 31.3 which deals with overtime. Clause 31.3 provides additional payments at the rate of time and a half for the first three hours and double time thereafter for all time worked in accordance with the circumstances set out in that clause. Clause 31.3a provides additional payments for work in excess of eight hours and 15 minutes in any shift. Clause 31.3b provides additional payments for work in excess of the weekly ordinary hours of 38 prescribed in clause 28.3.2. Clause 31.3c provides additional payments for work in excess of 8 hours per shift in specified circumstances when such hours are worked in accordance with clause 28.3.3.

• [70] Consequently, although a nine hour shift may be regarded as 'ordinary hours' if it is rostered in accordance with clause 28.3.2 or clause 28.3.3, the final 45 minutes of the shift will attract overtime payments because of clause 31.3a. This is a matter which was not specifically addressed by either party in the hearing and appears to be a source of confusion, at least amongst employees. For example, Mr Fenner's evidence was that any time worked after 8 hours and 15 minutes is 'rostered' or mandatory overtime and that any time worked beyond the 'rostered' ordinary hours of a shift, is voluntary overtime.[40] This does not appear to be an entirely accurate description of the last 45 minutes of the shift because if a nine hour shift is worked in accordance with the ordinary hours of duty requirements in clauses 28.3.2 and 28.3.3, the last 45 minutes would be regarded as ordinary hours, not mandatory overtime (although it attracts an overtime payment).

• [71] If, on the other hand, part or all of a nine hour shift resulted in the ordinary hours of duty in clauses 28.3.2 and 28.3.3 being exceeded, the hours in excess of ordinary hours of duty would be regarded as overtime and subject to either clause 31 or 32.

• [72] There is no evidence before me which indicates that KDNB and its employees distinguish between a nine-hour rostered shift which is ordinary time and a nine hour shift which results in an employee exceeding the ordinary hours of duty requirements. It may well be that KDNB (and STA before it), and their employees have not considered this matter as shifts of up to nine hours are generally acceptable to each of them regardless of whether the ordinary hours of duty requirements in clauses 28.3.2 and 28.3.3 are exceeded or otherwise. However, the distinction is an important one because in the first scenario, the employee is obliged to work the rostered shift, however in the second scenario, the employee has the right to refuse to work more than 38 hours per week under clause 31.2 of the Agreement. Further, s.62(2) of the FW Act is relevant to this matter as it prohibits an employer from requesting or requiring a full-time employee to work more than 38 hours in a week unless the additional hours are reasonable.

• [73] Having established that it is possible to roster a shift of nine ordinary hours under the Agreement, I will consider the RTBU's submissions in this context. A critical aspect of the RTBU's argument is that daily ordinary hours are capped at eight hours and 15 minutes so the limit of nine hours in clause 28.5 cannot refer to ordinary hours and must therefore refer to shift length. I do not accept that the Agreement limits daily ordinary hours to eight hours and 15 minutes. Clauses 28.3.2 and 28.3.3 which set out how the ordinary hours of duty for bus operators are to be worked contain no such limitation. The only part of the Agreement which potentially supports such a limitation is clause 31.3a which provides that additional payments will be made for all time worked in excess of eight hours and 15 minutes in any shift. However, this clause does not provide that daily ordinary hours are limited to eight hours and 15 minutes; it merely prescribes additional payments when work exceeds these hours. Further, references to eight hours and 15 minutes in the Payroll Manual and the Roster Guide are consistent with additional payments being made for all time worked in excess of eight hours and 15 minutes and up to nine ordinary hours being rostered per shift.

• [74] In addition, the reference in clause 31.3a to all time worked in excess of eight hours 15 minutes in any shift being paid for at the rate of time and a half 'for the first three hours and double time thereafter' is inconsistent with the shift being capped at nine hours. This is because the double time payments prescribed by clause 31.3a contemplate the possibility of more than three hours overtime being worked which would result in a shift of more than 11 hours and 15 minutes (but not more than twelve hours because of clause 78.2). The RTBU explained this by reference to the voluntary overtime provisions at clause 32 and submitted that such overtime would be permitted without offending the 'rostered shift' limitation of nine hours. In this regard, the RTBU submitted that the nine hour shift limitation prohibits the rostering of overtime under clause 31 but does not prevent an employee from agreeing to perform overtime in excess of nine hours under clause 32.

• [75] KDNB submitted that there is nothing in the text or structure of the Agreement which distinguishes between voluntary and other overtime or supports the RTBU's contention that clause 28.5 permits voluntary overtime to be worked in excess of nine hours but prohibits overtime in excess of nine hours to be rostered.

• [76] In my view, KDNB is correct about this matter. However, I also accept the RTBU's submissions that in enshrining a right to refuse overtime, clause 31 is consistent with an ad hoc arrangement where overtime can be offered and accepted rather than being built into a roster. I believe that clause 31.2 of the Agreement and s.62(2) of the FW Act are likely to present difficulties to KDNB if it proceeds with its proposal to regularly roster shifts in excess of nine hours. For example, s.62(2) of the FW Act requires KDNB to consider each of the factors in s.62(3) before requesting or requiring an employee to work more than 38 hours a week. The factors under s.62(3) are:

(a) any risk to employee health and safety from working the additional hours;

(b) the employee's personal circumstances, including family responsibilities;

(c) the needs of the workplace or enterprise in which the employee is employed;

(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

(e) any notice given by the employer of any request or requirement to work the additional hours;

(f) any notice given by the employee of his or her intention to refuse to work the additional hours;

(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(h) the nature of the employee's role, and the employee's level of responsibility;

(i) whether the additional hours are in accordance with averaging terms included under s.63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under s.64;

• [77] The requirements at s.62(3)(a) and (b) may well involve discussion with each of the employees before the development of a four weekly roster and may require the roster to be changed mid cycle to accommodate matters which arise for each employee. Further, an employee may refuse to work overtime pursuant to s.62(2) of the FW Act or clause 31.2 of the Agreement requiring further adjustments to the roster before it commences or during the roster cycle. It is difficult to see how KDNB could provide a consistent and reliable bus service based on rostered overtime in such circumstances. However, I note that the RTBU relied on clause 28.5, rather than 31.2 to argue that KDNB cannot roster shifts of more than nine hours and that its submissions about clause 31.2 were largely confined to providing context in relation to its contentions about the correct interpretation of clause 28.5. I therefore do not express any final view about whether clause 31.2 of the Agreement or s.62 of the FW Act prevent KDNB from rostering shifts of greater than nine hours.

• [78] Taking into account the evidence before me and the submissions of the parties, I find that the reference to 'ordinary hours of duty' in clause 28.5, having regard to the natural and ordinary meaning of the words read as a whole and in context means 'ordinary hours' and does not limit the amount of overtime that an employee may be required to perform under clause 31 or choose to perform under clause 32.

• [79] As I have not identified any ambiguity in the meaning of the words 'ordinary hours of duty', it is not necessary for me to make any findings in relation to the parties' submissions about common understanding.

• [80] As noted above, it appears to me that the dispute before me extends beyond the proper construction of clause 28.5 and to whether KDNB should roster shifts greater than nine hours. Section 62 of the FW Act and clause 31 of the Agreement appear to be relevant to any consideration of whether KDNB should roster shifts greater than nine hours.

• [81] I advised the parties that I held this view before the conclusion of the hearing and indicated that subject to hearing further from the parties, I may receive further submissions and evidence about these matters. In the circumstances, and in the interests of dealing with the totality of the dispute, I believe that it would be premature for me to dismiss the application at this stage especially as the dispute between the parties arises from the important issue of the provision of public transport services.

• [82] I will consider whether further steps are required to conclude the dispute after hearing from the parties. The matter will be listed for directions at a time and date to be advised.

Mr B. Milne, Legal Representative for the Respondent

[1] Witness Statement of David Babineau dated 28 March 2025 (Babineau Statement) [1], Digital Hearing Book (DHB) 209

[2] Witness Statement of Lance James Fenner dated 28 March 2025 (Fenner Statement) [1], [4], DHB 95

[3] Babineau Statement [6]-[7], DHB 209-210

[23] Form F10 - Application for the FWC to deal with a dispute in accordance with a dispute settlement, [2.1.10], DHB 9

[34] Sheehan v Thiess Pty Ltd [2019] FCA 1762, [20]

[35] City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362, [379]

[36] Kucks v CSR (1996) 66 IR 182, 184; Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449

[37] Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241; 138 IR 286, [2] per Gleeson CJ and McHugh J; [30] per Gummow, Hayne and Heydon JJ; [64] and [96] per Kirby J; [129]-[131] per Callinan J

[38] King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173, [127]

[39] Sheehan v Thiess Pty Ltd [2019] FCA 1762, [22]

[40] Fenner Statement [27]-[28], DHB 97

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