Fair Work Act 2009

s.739 - Application to deal with a dispute

GENESEE & WYOMING AUSTRALIA PTY LTD (SA/NT) ROLLINGSTOCK MAINTENANCE ENTERPRISE AGREEMENT 2019

Alleged dispute about a matter arising under the enterprise agreement - whether certain shift workers are continuous shift workers so as to be entitled to additional annual leave - previous decision of the Commission concerning an enterprise agreement in the same terms applying to the parties - whether the application is an abuse of process - decision relevant to the proper application of the agreement with circumstances of the present dispute to be assessed - application determined on its merits by applying the objective intention in light of the authorities and the earlier decision - found that employees not continuous shift workers under the terms of the enterprise agreement - dispute determined - observations made about potential impact upon another entitlement under the enterprise agreement.

[1] The Australian Rail, Tram and Bus Industry Union (RTBU) has applied on behalf of its relevant members under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute concerning the terms of the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2019 (2019 Enterprise Agreement).

[2] The Respondent in this matter, and the employer covered by the 2019 Enterprise Agreement, is One Rail Australia Pty Ltd (One Rail). One Rail is the successor business to Genesee & Wyoming Australia Pty Ltd, the named employer party to the 2019 Enterprise Agreement.

[3] The dispute concerns whether a group of employees engaged under the 2019 Enterprise Agreement at One Rail's Berrimah Depot in the Northern Territory are Continuous Shift Workers as defined in clause 7 of the Agreement so as to be entitled to an additional week of annual leave under clause 29.5 of that instrument. The RTBU contends that this is so.

[4] It is common ground that the dispute is before the Commission as a result of the operation of the dispute resolution procedures in clause 41 of the 2019 Enterprise Agreement and that this provides the necessary jurisdiction to determine the dispute.

[5] Part of the background to this matter is that the Commission as differently constituted has previously determined a dispute under the terms of an immediately preceding Enterprise Agreement applying to these parties (amongst others), the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2016 (2016 Agreement). On 16 April 2019, Anderson DP determined a dispute (AMWU v Genesee & Wyoming Australia Pty Ltd[1] - the 2019 Decision) regarding the same issue as it impacted upon a group of employees associated with the Whyalla Steelworks in South Australia. The Deputy President determined that the employees concerned were not Continuous Shift Workers, and as a result, not entitled to the additional week of annual leave. In so doing, the Deputy President referenced an earlier decision of the Commission in O'Neill v Roy Hill Holdings Pty Ltd[2] (Roy Hill).

[6] In this matter, One Rail contends that this application is an impermissible attempt to re-litigate the issues determined by the 2019 Decision. Further, and in the alternative, it contends that the employees concerned with this matter are not Continuous Shift Workers, largely on the basis adopted by the Commission in the 2019 Decision.

[7] Having conducted a hearing in this matter, I have determined that this application is not an abuse of process and is properly before the Commission. As to the substance of the dispute, I have ultimately determined that the employees concerned are not Continuous Shift Workers under the terms of the 2019 Enterprise Agreement. The basis for these conclusions and the determination of the Commission are set out in the Decision to follow.

1. The agreed facts and question to be determined

[8] The parties agreed[3] the following:

"1. One Rail Australia Pty Ltd (Company) provides rail freight services in various states and territories of Australia.

1. Rail freight services are supported by a rollingstock maintenance function. Some of the employees that are engaged to perform rollingstock maintenance at the Berrimah Depot in the Northern Territory (Site) are members of the Australian Rail Tram and Bus Industry Union (RTBU) (Employees).
2. The Employees and the Company are covered by the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2019 (2019 Agreement).
3. Prior to the 2019 Agreement, work performed by the Employees at the Site was covered by the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2016 (2016 Agreement).
4. Prior to the 2016 Agreement, work performed by the Employees at the Site was covered by the Downer EDI Rail South Australian and Northern Territory Enterprise Agreement 2013 - 2016 (Downer EDI 2013 Agreement).
5. Prior to the Downer EDI 2013 Agreement, work performed by the Employees at the Site was covered by the Downer EDI Rail South Australia and Northern Territory Enterprise Agreement 2010 - 2013 (Downer EDI 2011 Agreement).

1. "Continuous Shift Worker" is defined at clause 7 of the 2019 Agreement as "an employee who is continuously rostered to work shifts 24 hours a day for 7 days a week and regularly works Sundays and public holidays".
2. Pursuant to clause 29.5 of the 2019 Agreement, a full or part time employee who is engaged as a Continuous Shift Worker has a pro-rata entitlement of 1 week (38 hours) of additional annual leave (Annual Leave Entitlement).
3. The definition of Continuous Shift Worker, and the text of the Annual Leave Entitlement have not changed (other than clause renumbering) since the Downer EDI Agreement.

1. The Employees at the Site work an even time roster of four days on, followed by four days off.
2. The Site, and the Employees, operate on a 24/7 basis split into two shifts, Day Shift being 06:00 - 18:00, and Night Shift, being 18:00 - 06:00.
3. This is the same roster pattern which the Company has applied since 2014.
4. If the workers are "Continuous Shift Workers" (as defined in the 2019 Agreement) then they are entitled to receive the Annual Leave Entitlement.

Are the Employees Continuous Shift Workers and therefore entitled to the Annual Leave Entitlement?"

[9] Although not part of the agreed facts, the material before the Commission confirms that the employees at the Berrimah Depot have historically been paid the additional annual leave applicable to Continuous Shift Workers under the previous enterprise agreements. The 2019 Enterprise Agreement operated from 12 February 2020.[4] Further, on or about 21 September 2020, One Rail informed their employees at the Berrimah Depot that they would no longer be classified as "Continuous Shift Workers" under the 2019 Agreement and as a result would no longer be receiving an additional one week of annual leave as per clause 29.5 of the 2019 Enterprise Agreement.[5] This was not the result of any change in the rosters of the employees concerned, but rather, a change in the position adopted by One Rail directly influenced by the 2019 Decision.

1. Whether this application is an impermissible process

[10] One Rail contends that this application is an impermissible attempt to re-litigate a dispute and issues already determined by the Commission. It claims that this application is an abuse of process and that the principle of comity should prevent the determination of this matter. The basis of these propositions can be summarised as follows:

• There is considerable support in previous decisions of the courts to the effect that it is open to the court in its discretion not to allow a party to re-litigate an issue that was previously decided against it by a judicial body or a quasi-judicial body. The Australian Industrial Relations Commission (AIRC) has also recognised that the strong public policy reasons behind why courts protect their processes against abuse by recognising the concepts of issue estoppel and abuse of process are relevant to the AIRC's functions and powers. The AIRC has been prepared not to allow a party to re-litigate an issue in the AIRC that was previously decided by the AIRC. To this end, whilst the RTBU was not a party to the AMWU's dispute which led to the 2019 Decision, it was nonetheless covered by the 2016 EA under which that despite was brought, and the terms of which that dispute concerned. The RTBU was made aware of that dispute prior to the 2019 Decision during the course of bargaining for the 2019 EA. The RTBU was also made aware of the 2019 Decision prior to the 21-day appeal period expiring. It apparently took no steps to appeal the 2019 Decision despite having standing to do so. The Commission should not permit it to re-agitate the issue now.

• Second, principles of comity would prevent that course. Whilst the Commission as presently constituted would not be bound by stare decisis principles to follow the 2019 Decision, it would do so as a matter of policy and sound administration in the absence of cogent reasons for not doing so. Those policy considerations would, of course, be even more compelling in circumstances where a party sought to re-agitate an issue dealt with directly in the 2019 Decision (as the RTBU now seeks to do). No such cogent reasons are advanced.

[11] The RTBU denies these contentions and posits that the Commission can and should deal with this dispute. The basis of that position included the following propositions:

• The Commission in the 2019 Decision expressly stated that the decision did not deal with the circumstances of the Darwin (Berrimah Depot) employees;

• Unlike the employees involved with the 2019 Decision, the employees in this case had been treated as Continuous Shift Workers for 12 years on the basis of the current roster system and no change in rosters was involved to justify One Rail now adopting a different approach to deny the additional leave; and

• There were discussions that took place during the negotiations for the 2019 Enterprise Agreement that inform the proper application of its terms.

[12] In dealing with this aspect, I observe that there are many and varied applications of the principles of comity. For present purposes I proceed on the basis that these relevantly include respect for relevant decisions of Courts and Tribunals dealing with the same or similar issues, and the desirability for consistency and predictability in approach in decisions from the same Tribunal. As posited by One Rail, the Commission is not bound by the principles of stare decisis but has consistently held that the doctrine of precedent and the predictability of the law are important considerations, particularly concerning decisions made by a Full Bench of the Commission.[6] The implications of the 2019 Decision may go beyond these principles and I deal with this below.

[13] There is considerable substance in the propositions advanced by One Rail; however, for reasons outlined below I am not persuaded that this present application should not be heard and determined on its merits.

[14] I accept that the relevant terms of the 2019 Enterprise Agreement and the 2016 Agreement are consistent, and that at least one of the roster patterns considered in the 2019 Decision is comparable with those applying to the Berrimah Depot employees. The 2019 Decision determined the proper application of the 2016 Agreement and was made prior to the approval of the 2019 Enterprise Agreement, which was then subsequently made and approved in the same terms. As a result, the 2019 Decision remains directly relevant to the proper application of the 2019 Enterprise Agreement and the determination of this dispute. I will return to this aspect in more detail shortly.

[15] I observe that the "parties" to the 2019 Decision included the AMWU and not the RTBU,[7] and although the RTBU may have had standing for the purposes of an appeal, the 2019 Decision expressly excluded[8] the Berrimah Depot employees from the scope of the determination and did not consider the practical circumstances of the present dispute. More relevantly, the RTBU is entitled to have the specific circumstances of the Berrimah Depot employees considered having regard to their historical treatment and the fact that the 2019 Enterprise Agreement was negotiated and continued in the same relevant terms after the 2019 Decision was made. In that regard, I observe that the Deputy President in the 2019 Decision declined[9] to express a view about whether the earlier "site practice" was relevant given the change in roster that had occurred. The RTBU also seeks to rely upon a decision of the Full Bench of the Commission issued after the making of the 2019 Decision. These elements are different to the circumstances in which the Deputy President made the 2019 Decision. Whether these factors lead to a different outcome is, of course, a matter for the proper construction of the 2019 Enterprise Agreement and its application to the present dispute.

1. The relevant provisions of the Enterprise Agreement and the Act

[16] The 2019 Enterprise Agreement defines Continuous Shift Worker in the following terms:

Continuous Shift Worker means an employee who is continuously rostered to work shifts 24 hours a day for seven (7) days a week and regularly works on Sundays and public holidays"

[17] The 2019 Enterprise Agreement differentiates entitlements by reference to such employees in terms of public holidays and annual leave. Although this dispute is about annual leave, the public holiday provision is relied upon by the RTBU and it provides as follows:

22.1.1 Work performed on a public holiday, except for continuous shift work will be remunerated at 250% of the ordinary day shift rates for all time worked.

22.1.2 Continuous shift workers will be remunerated at 200% of the ordinary day shift rate for all time worked.

[18] The relevant annual leave provision contained in the 2019 Enterprise Agreement is as follows:

29.5 Additional Annual Leave for Continuous Shift Workers

A full or part time employee who is engaged as a Continuous Shift Worker as defined, has a pro-rata entitlement of 1 week (38 hours) of additional annual leave."

[19] Some of the context for the Enterprise Agreement provisions is set by the terms of the Act. Section 87(1) provides that an enterprise agreement (and a modern award) may define the nature of a shiftworker so as to be entitled to the 5 weeks of annual leave under the terms of the NES.[10] It does so in the following terms:

(1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to:

(i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(ii) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).

Note: Section 196 affects whether the FWC may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards."

[20] The 2019 Enterprise Agreement was approved by the Commission and this must have included satisfaction with s.196 of the Act, which establishes the following approval requirement:

(a) an employee is covered by an enterprise agreement; and

(b) a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Shiftworkers and the National Employment Standards

(2) The FWC must be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

Note: Section 87 provides an employee with an entitlement to 5 weeks of paid annual leave if an enterprise agreement that applies to the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards."

[21] The relevant modern award for this purpose as nominated in the 2019 Enterprise Agreement itself was the Manufacturing and Associated Industries Award 2010 (Manufacturing Award). I observe that the Manufacturing Award provides as follows:

For the purpose of the additional week of annual leave provided for in section 87(1)(b) of the Act, a shiftworker is a 7 day shiftworker who is regularly rostered to work on Sundays and public holidays."

[22] The Manufacturing Award also has shift work provisions[11] for both continuous and non-continuous shiftworkers.

[23] It is the second limb of clause 7 of the 2019 Enterprise Agreement that is the focus of this dispute and in particular, the import of the requirement that employees "regularly work on Sundays and public holidays". The RTBU contends that the Berrimah Depot employees do so on the following basis:

• In the context of clause 7, the word "regularly" requires a level of frequency so that it can be said that those days are "regularly worked". However, the word regularly should not be interpreted so narrowly or examined in comparison to a predetermined numerical figure, thus not considering the larger circumstances of the particular situation. In this dispute, the high frequency of Sundays and public holidays clearly reflects regularity through a calendar year.

• The relevant employees work on average 29 Sundays and 5 public holidays in the 2021 calendar year. The largest amount of Sundays that any employee works at the Berrimah Depot is 31 and 5 public holidays.

• There are 52 Sundays and 13 public holidays in the Northern Territory for the 2021 calendar year (65 in total). The relevant employees will work more than half of the available Sundays in 2021. They will also work more than half of the culminative available Sundays and public holidays.

• The employer has not in the past applied such a restrictive approach to the concept of what is considered "regular" work on Sundays and public holidays. One Rail continued the practice of the previous employer when they took over the site in 2014. One Rail has provided the additional week of annual leave for 6 years - from 2014 to 2020 - before it unilaterally ceased the practice in January 2021.

• The long-standing industrial practice of the site is relevant, as the employees have been receiving an additional one week of annual leave for just over 12 years, working the exact same roster that they are currently working in 2021.

• The definition of "Continuous Shift Worker", and the text of the Annual Leave Entitlement have not changed (other than clause renumbering) since the Downer EDI Rail South Australia and Northern Territory Enterprise Agreement 2010 - 2013. One Rail has unilaterally changed its interpretation of cl 7. This change was not a consequence of a re-negotiation of the Agreement or the terms of the relevant industrial instrument applying at a particular time. This change in interpretation, unilaterally alters the common intention of the parties.

[24] In relation to approach adopted in Roy Hill, the RTBU contends that this outcome is distinct from the current dispute. The Roy Hill decision focused on the interpretation of s.87 of the Act. This dispute focuses on a significantly narrower task, being interpretation of an enterprise agreement. An enterprise agreement is an instrument of those who made it not the outcome of the legislature. Further, it posits that if the Commission applies the Roy Hill test of 'regularly' to the 2019 Agreement it would be superimposing the Commission's definition of 'regular' from the Act over the objective intention of the parties who made the agreement. In that regard, it contends that the parties' always intended that the employees who work a rotating roster of 4 days on, 4 days off should receive the additional week of annual leave. The Commission should not interfere with that intention.

[25] The RTBU also denied that it was pursuing a claim for 5 weeks annual leave as part of the negotiations leading to the 2019 Enterprise Agreement. Rather, it wanted provisions inserted into the agreement that retained existing provisions and no new claim was advanced.

[26] In oral submissions, the RTBU also referred to the pay arrangements confirmed in the evidence of Mr Longstaff. That evidence reveals that Mr Longstaff was paid for the most recent Australia Day public holiday, at the rate of 200 per cent. Under clause 22 of the 2019 Enterprise Agreement, this is the rate payable to continuous shift workers. The RTBU contended that this confirmed that One Rail viewed the Berrimah Depot employees as Continuous Shift Workers.

[27] Further, the RTBU contends that the Full Bench in 4 Yearly Review of Modern Awards - Registered and Licensed Clubs Award 2010[12] (Clubs Award Decision) confirmed that it was the terms of the enterprise agreement, rather than the approach set out in Roy Hill, that should be applied.

[28] As a result, the RTBU contends that the Commission should answer the question to be determined in the affirmative.

[29] The RTBU relied upon the evidence[13] of Mr Longstaff, one of the Berrimah Depot employees. That evidence went to the following:

• The 4 day on and 4 day off roster pattern worked by himself and the other Berrimah Depot employees (since - in his case - 2008);

• The history of annual leave benefits extended to the Berrimah Depot employees including the provision of 5 weeks annual leave;

• The number of Sundays and public holidays worked, or to be worked, in the 2021 calendar year, including 3 shifts that commenced on a Saturday and concluded on a Sunday, and one shift that commenced before but concluded on a public holiday; and

• Payments made to him for the 2021 Australia Day public holiday.

[30] Mr Longstaff was not cross-examined.

[31] One Rail contends that the Berrimah Depot employees are not Continuous Shift Workers under the terms of the 2019 Enterprise Agreement. The basis for that contention is as follows:

• The 2019 Enterprise Agreement does not define the composite phrase "regularly works on Sunday and public holidays". However, that phrase is not unique to that instrument. It is one of long-standing industrial usage, and has an accepted meaning; namely, an employee who works an average of 34 Sunday shifts and 6 public holidays over a 12 month period.

• That industrial history was consolidated and considered in detail by Williams C in Roy Hill. In that decision, the Commissioner considered a line of authority derived from various of the Commission's predecessors and state industrial tribunals dating from as early as 1959. That line of authority established that the additional week's annual leave entitlement was not an entitlement that adhered to shift work per se, but rather served an identifiable purpose: it compensated employees for the inconvenience associated with working a substantial number of Sundays and public holidays. It also stands for the proposition that "an employee 'regularly works on Sundays and public holidays' if they have worked at least 34 Sundays and 6 public holidays in a year".

• The 34 Sundays and 6 public holidays threshold was not an arbitrary figure: rather, it reflected the prevailing industrial norm across industries that 7-day shift workers ordinarily worked 5/7ths of all Sundays and public holidays in a year.

[32] One Rail further contends that the RTBU's submission seeks to side-line that long-standing industrial history. That is, the RTBU's suggestion, that the employer's past practice had been in "the common contemplation of the parties" and informed the meaning of "regularly works Sundays and public holidays" in the 2019 Enterprise Agreement, was misconceived for three reasons.

• First, the RTBU advances no admissible evidence as to that "common contemplation". The relevant "common contemplation" is that of all parties to the 2019 Enterprise Agreement, which relevantly includes all of the employees employed at the time it was made and who would be covered by it. Insofar as there is any evidence of the intention of bargaining representatives, that evidence positively suggests that there was no "common contemplation" whatsoever. Mr Lawrie, on behalf of One Rail, deposes that the RTBU advanced a claim for a fifth week of annual leave during bargaining for the 2019 Enterprise Agreement, and that One Rail rejected the claim on the basis of the resolution of the AMWU's dispute by way of the 2019 Decision.

• Second, insofar as the RTBU relies on evidence of how the terms of the 2016 Agreement and its predecessors were in fact applied during their nominal life, that evidence is either inadmissible or else carries minimal weight. It cannot be relied upon to show what the parties understood to be the correct construction of clauses 7 and 29.5 when they bargained for the 2019 Enterprise Agreement because it is irrelevant to that question. That is, that evidence of past practice is equally consistent with a common mistake as to their proper construction, or with a unilateral decision by One Rail to temporarily honour Downer EDI's past practice notwithstanding that the practice did not reflect the proper construction of those clauses. Anderson DP drew the latter conclusion in finding that there was no relevant common intention for a lower continuous shift worker threshold. Further, that evidence of past practice only concerns the Berrimah site, and thus does not assist in construing an instrument with broader application.

• Third, no relevant distinction arises from the fact that Roy Hill concerned an award/enterprise agreement free employee's entitlement under s.87(3) of the FW Act. The historical context is of significant assistance in understanding the provisions of Division 6 of Part 2-2. The enactment by the legislature of a NES entitlement to paid annual leave in the Act did not occur in a vacuum, but rather against the lengthy historical background of the development and establishment of paid annual leave as a standard industrial entitlement through decisions and awards of industrial tribunals and earlier State and federal statutory provisions.

[33] One Rail contends that the proper construction of clauses 29.5 and 7 of the 2019 Enterprise Agreement is that Continuous Shift Workers are employees who are "continuously rostered to work shifts 24 hours a day for seven (7) days a week", and who work a minimum of 34 Sundays and 6 public holidays in a 12 month period.

[34] Given that the RTBU accepts that the relevant employees "work on average 29 Sundays and 5 public holidays in the 2021 calendar year"; and "the largest amount of Sundays that any employee works at the Berrimah Depot is 31 and five public holidays", those accepted facts provide a complete answer to the RTBU's application. No individual employee is entitled to the additional week of annual leave, on a pro-rata basis or otherwise, provided by the 2019 Enterprise Agreement (or the NES).

[35] Further, One Rail contends that the Commission as presently constituted should arrive at the same conclusion as Anderson DP in the 2019 Decision for the reasons set out above, and in effect, because that is the interpretation of the Agreement determined by the Deputy President in that earlier decision.

[36] In relation to the evidence of Mr Longstaff, One Rail contends:

• Mr Longstaff's evidence does not demonstrate that the 2021 roster reaches the required level and in any event:

  • The 31 Sundays includes three Saturday shifts which 'cross over' into Sunday;

  • Those three 'cross over' shifts are then 'added' (and thus double-counted) to the Sunday shifts which have already been included in the 31 Sundays listed;

  • It follows that Mr Longstaff in fact is rostered to work 28 Sunday shifts, and 3 Saturday shifts which 'cross over' into Sunday; and

  • The same 'double counting' is applied to Anzac Day and it follows that Mr Longstaff in fact is rostered to work 5 public holidays, and one shift that crosses over into a public holiday.

[37] One Rail led evidence[14] from Mr Edward Lawrie, its Workplace Relations Specialist. Mr Lawrie's evidence went principally to the negotiations leading to the 2019 Enterprise Agreement and whether the RTBU was advancing a claim for additional leave. Mr Lawrie was cross-examined, principally on the exchanges between the bargaining representatives in negotiations leading to the proposed enterprise agreement being put to employees for approval.

[38] In relation to the payment of the lower (continuous shift worker) public holiday rate to Mr Longstaff, One Rail contends that the practice of this kind may have been the "redolent of a mistake or simply the desire to preserve industrial practice ..... or a common intention that the agreement should be construed on a particular way."[15] One Rail also contends that the RTBU failed to put its factual assertion to Mr Lawrie[16] and as a result, the Commission should not entertain that submission. In the alternative, it contended that the payment did not permit the Commission to draw an inference that this reflects the proper construction of the 2019 Enterprise Agreement.

[39] In summary, One Rail contends that the Berrimah Employees are not 'Continuous Shift Workers'. They are not entitled to additional annual leave, or to any other benefits to which 'Continuous Shift Workers' are entitled under the 2019 EA. The Commission should determine the agreed question and the application accordingly.

7.1 The required approach to the construction of the 2019 Enterprise Agreement

[40] A number of Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent comprehensive statement of the principles by the Commission was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[17] (AMWU v Berri) in the following terms:

"[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(ii) the disputed provision's place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

1. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

2. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

3. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."

[41] This is a non-exhaustive statement of the principles to be adopted[18] and I have applied this approach in determining this dispute.

[42] In Geo A Bond & Co Ltd (In Liq) v McKenzie,[19] (Geo A Bond) Street J said:

"...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award."

[43] In Re Aurora Energy Enterprise Partnership Agreement 2002 - 2005 Lacy SDP observed that:

"It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted."[20]

[44] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd[21] in the following terms:

"No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.

The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.

That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position."[22]

[45] The nature of the present task has also been emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia[23] in the following terms:

"[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission's view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

'But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.'"

[46] It is well established that terms are not easily implied into enterprise agreements.[24] This is reinforced by the approach adopted in AMWU v Berri, and the implications of s.739(5) of the Act that prevents the Commission from making a determination that is inconsistent with the terms of the approved enterprise agreement and the scheme of the legislation that permits variations only in certain defined circumstances. Implied terms must satisfy a number of prerequisites.[25]

[47] More recently, the Full Court of the Federal Court in WorkPac Pty Ltd v Skene[26] (WorkPac) also provided the following convenient summary of the required approach:

"[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...". The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced."[27] (citations omitted)

[48] The above observations are consistent with the approach taken in AMWU v Berri. In the end, my present task is to ascertain the objective intention of the Agreement based upon the language and terms of the instrument, when read as a whole, and considered having regard to its context and purpose. Context includes legislative framework and the history of the provision, including in this case the 2019 Decision. References to common intention of the parties are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement.

[49] For completeness, I observe that the Commission is not empowered to grant some form of declaratory relief.[28] Rather, the Commission is determining the proper application of the 2019 Enterprise Agreement in order to determine the dispute between the parties about that instrument under the terms of the agreed dispute resolution procedure.[29]

[50] As outlined earlier, the 2019 Decision concerned the predecessor enterprise agreement to the 2019 Enterprise Agreement - the 2016 Agreement, which was relevantly in the same terms regarding annual leave and the associated definition of Continuous Shift Worker. The Commission was dealing with a dispute lodged by the AMWU and it involved a group of employees in Whyalla covered by the 2016 Agreement who were subject to a change in roster. Prior to that change, the employees had worked a four on/four off roster throughout the year and had been paid the additional week of annual leave applicable to Continuous Shift Workers. The roster change involved the employees working a hybrid roster with a four on/four off roster for a period between 31 and 36 weeks per year (roster 1) and a Monday to Friday 8 hour shift (shift 2), in effect, for the balance of the year.

[51] Shift 1 is equivalent to that historically and presently worked by the Berrimah Depot employees.

[52] In light of the change for the Whyalla employees, the new roster arrangements meant the over a given year, employees would work an average of either 16 Sundays and 6 public holidays or an average of 20 Sundays and 10.5 public holidays, depending upon their particular roster pattern in that year.[30] The employer considered that this would mean that the employees were no longer continuous shift workers and the AMWU disputed that position.

[53] In reading the ultimate determination, Anderson DP concluded as follows:

"[61] I conclude that the ordinary meaning of the phrase "regularly working on Sundays and public holidays" in clause 7 of the Agreement is not materially different to its meaning in other industrial instruments that invoke that phrase for shift work and annual leave purposes; that is, that an employee must work at least approximately 34 Sundays and 6 public holidays in a given year to be entitled to the extra week of annual leave."

[54] The basis for that conclusion included the following:

"[53] The phrase "regularly works on Sundays and public holidays" is not unique to this Agreement or unfamiliar to industrial regulation. The phrase has been the subject of past interpretation by the Commission and its predecessors including in the context of shift work and annual leave provisions. O'Neill v Roy Hill Holdings Pty Ltd (Roy Hill) concerned the continuous shift worker annual leave entitlement for award or agreement-free employees under section 87(3) of the FW Act. Section 87(3) requires that such employees "regularly work(s) on Sundays and public holidays". On the facts in Roy Hill, the employees worked an average of 31 Sunday shifts per year. Williams C held that the employees did not "regularly work" on Sundays and public holidays, and were thereby not entitled to the shift worker annual leave entitlement under s 87(3) of the Act.

[54] In reaching this conclusion, Williams C traced the industrial history of the phrase. The Commissioner concluded that "an employee 'regularly works on Sundays and public holidays' if they have worked at least 34 Sundays and 6 public holidays in a year".

[55] The decision in Roy Hill and the line of authority it draws from the Commission's predecessors and state industrial tribunals suggest that the additional week of annual leave was not, in its conception at least, an entitlement that adhered to shift work per se, but rather served an identifiable purpose: it compensated employees for the inconvenience associated with working a substantial number of Sundays and public holidays. Generally speaking, this industrial jurisprudence establishes, as Williams C concluded, that a shift worker should work at least 34 Sundays and 6 public holidays per year to be so entitled. The phrase "regularly works Sundays and public holidays" was intended to reflect that position. The threshold (of 34) was not an arbitrary figure: rather, it reflected the then prevailing industrial norm across industries that 7-day shift workers ordinarily worked 5/7ths of all Sundays and public holidays in a year.

[58] In the context of clause 7 of the Agreement, the word "regular" has a temporal meaning; it requires a level of frequency in the sense that the number of Sundays and public holidays worked in a given year must be of sufficient number to allow it to be objectively said that those days are "regularly worked". I do not interpret the word "regular" so narrowly as to compel a systematic pattern of working Sundays and public holidays across given weeks or periods. Sufficient numerical frequency across a given year, even if the product of random or non-systematic patterns of work, would be capable of constituting "regularly working" on Sundays and public holidays, at least for the purposes of the Agreement.

[59] Taking the language of the Agreement into account, I see no reason to deviate in any significant manner from the underlying proposition drawn from Australian industrial jurisprudence that work in the order of 34 Sundays and 6 public holidays is required to constitute "regularly" working on Sundays and public holidays. The Agreement contains no special definition of the phrase "regularly works Sundays and public holidays" nor any unique use of the adverb "regularly". The subject-matter of the phrase in the Agreement involves the same category of days (Sundays and public holidays) as the broader industrial jurisprudence.

[60] Thirty-four Sundays and public holidays in a given year represents approximately two-thirds of available Sundays and public holidays. At that level, work on those days across a year is consistent with the adjective "regular". Whilst there is an element of degree inherent in the word "regularly", from purely a construction point of view, a materially lesser amount would not constitute "regularly working" those days. For example, without particular evidence of unique context or common intention, working only one half or less of available Sundays and public holidays each year would not be working those days on a regular basis."

[55] The Deputy President also considered whether the surrounding circumstances might displace, render uncertain, or otherwise inform the meaning of the relevant phrase and held that it was the change in roster that led to the removal of the extra week of annual leave[31] and that there was no evidence of a common objective that the relevant phrase had been subject to specific negotiation or common intention.[32] Further, he considered whether the combination of Sunday and public holiday shifts might meet the required frequency of shifts and determined as follows:

"[71] I have considered whether the clause 7 definition can be applied by cumulatively combining the number of Sundays and public holidays worked over a given year (30.5 for yellow line workers and 22 for blue line workers) and assessing that frequency against the total available combined Sundays and public holidays in a year (65 days). Even applying this cumulative approach, the combined tallies fall short of half of overall Sundays and public holidays combined being worked (46.7% for yellow line workers and 33.8% for blue line workers). At those levels I am still unable to conclude that Sundays and public holidays are "regularly" worked."

[56] As outlined earlier, the Deputy President found that because the new shift patterns of the Whyalla employees did not lead to them working the extent of Sundays and public holidays of the general level referenced in Roy Hill, the employees were not Continuous Shift Workers within the meaning of the agreement's definition and annual leave provisions.

[57] The Deputy President dealt with an alternative proposition concerning whether there was a pro rata entitlement to additional leave given the 2 different shifts involved. Given how that aspect was dealt with, this is not directly relevant in this case.

[58] The 2019 Decision concerns, in effect, the same agreement terms as now applying to the present parties where one of the roster patterns involved represents the same roster context as the present application. Although the 2019 decision expressly did not consider the circumstances of the Berrimah Depot employees, and there are some differences in context, it is largely on point with this case and it is directly relevant in determining the proper application of the 2019 Enterprise Agreement to the current dispute. That is, the 2019 Decision determined the proper application of the same provisions in the context of One Rail's operations but did not itself determine the consequences for Berrimah Depot employees. I will also return to the implications of the 2019 Decision when assessing the negotiation and approval of the present enterprise agreement and the prior conduct of the parties.

7.3 The implications of the Clubs award decision

[59] The Full Bench of the Commission was dealing with an application by employers to vary the Registered and Licensed Clubs Award 2010 (Clubs award) with respect to the entitlement for 5 weeks of annual leave. At the time, the Clubs award provided as follows:

For the purposes of the additional week of leave provided by the NES, a shiftworker means a seven day shiftworker who is regularly rostered to work on Sundays and public holidays, and includes a Club Manager."[33]

[60] I observe that this is akin to the wording of the 2019 Enterprise Agreement, at least in terms of that part of the definition that is the focus of this matter. The first part of the definition is certainly different, and as discussed below, this reflects the different industry circumstances and is important in understanding the import of the Clubs award decision.

[61] The application sought to replace this definition with words that directly reflected the approach taken in Roy Hill and this would have included the notion that the relevant shift worker must have been regularly rostered to work on "Sundays and public holidays (34 Sundays and 6 Public Holidays)." I observe for completeness that the application also sought to include the notion of a continuous shift system within the definition. In rejecting both aspects of the application, the Full Bench found as follows:

"[16] We are not satisfied that the variations proposed by CAI are necessary to meet the modern awards objective. The expression "seven day shiftworker" used in both the clause 3.1 definition and the above provisions is not defined in the Clubs Award. We do not consider that it is to be construed in the context of the Clubs Award as meaning someone working on a continuous "24/7" shift work system for two reasons: first, the award does not provide for any system of continuous shift work involving day, afternoon and night shifts and, second, continuous shift work is not, with what we expect are rare exceptions, a feature of the club industry in practice. Having regard to typical work and roster patterns in the industry, it is best understood to refer to an employee who is rostered to work on a shift work system which operates across all seven days of the week. Accordingly the first aspect of CAI's claim is rejected.

[17] As to the specification of the number of Sundays and public holidays which must be worked in a year to qualify as someone "who is regularly rostered to work on Sundays and public holidays", we reject the proposition that the single member decision in O'Neill v Roy Hill Holdings Pty Ltd, which concerned the meaning of that expression in s 87(3) of the FW Act, is determinative of the position here. Section 87(1)(b)(i), which is the relevant statutory provision, does not require that a person be "regularly rostered to work on Sundays and public holidays" in order to qualify for the extra week's annual leave. Rather, the provision leaves it to the award to determine who qualifies. Nothing has been put before us to persuade us that the expression "regularly rostered to work on Sundays and public holidays" used in clauses 3.1 and 30.1 the Clubs Award, having regard to the industrial historical context of the award, necessarily means 34 Sundays and 6 public holidays. That calculation is derived from a continuous shift work system where it is assumed that a shift worker works an equal number of shifts on each of the seven days of the week, and takes it context from manufacturing and engineering operations where a continuous level of output is sought to be maintained. The club industry, by contrast, faces far greater patronage at the latter end of the week and on weekends, and rosters staff accordingly. There is no proper basis for the assumption that an employee will work an equal number of shifts on each day of the week.

[18] For example, a club employee may be likely to work more Sundays than Mondays. Many public holidays fall on Mondays. That may result in the employee working more than 34 Sundays in a year, but less than 6 public holidays. On CAI's approach, that person does not regularly work Sundays and public holidays. The justification for that approach is not readily apparent.

[19] There is no evidence before us of any disputation concerning the operation of the current provision. Likewise, there is no evidence as to how the current provision is applied in practice, so there is no basis for satisfaction that the CAI's proposal might not reduce the current annual leave entitlement of some employees."

[62] The Clubs Award Decision reinforces that it is the modern award (or enterprise agreement) that specifies the meaning of shiftworker that provides the entitlement to 5 weeks annual leave for the purposes of s.87(1) of the Act. It also reinforces that the meaning to be attributed to the general term, "regularly works on Sundays and public holidays", should be understood in the "industrial historical context" of the instrument and industry in which it operates. Further, the Full Bench indicated that the approach evident from Roy Hill is derived from a continuous shift work system where employees would normally work an equal number of shifts on each of the 7 days of the week, such as in manufacturing and engineering contexts where continuous output is sought to be maintained.

[63] By implication, the Full Bench also indicated that a strict formula for the number of Sundays and public holidays could lead to inappropriate outcomes, depending upon the circumstances of the workplaces being covered.

[64] The 2019 Enterprise Agreement operates in the context of a 7-day continuous shift arrangement akin to that recognised by the Full Bench in the Clubs Award Decision as the basis of the approach summarised in Roy Hill. I observe that the Manufacturing Award, which operates as a safety net instrument for the Agreement, also tends to confirm this context. This is relevant but does not mean that the Clubs Award Decision necessarily endorses the strict adoption of the Roy Hill formula in all such circumstances. The Full Bench was not dealing with a claim in that context. It also does not mean that the approach in Roy Hill is necessarily wrong or not to be considered where appropriate.

7.4 The implications of the negotiations leading to the 2019 Enterprise Agreement

[65] Based upon the material that is before the Commission,[34] I find that during the negotiations leading to the 2019 Enterprise Agreement the RTBU made a claim seeking to insert a provision "retaining the existing conditions in Darwin." The context for this position was an awareness of the 2019 Decision and that the Berrimah Depot employees had been, and continued at that point, to be paid the additional period of annual leave. This was not framed as a claim for a new condition but rather a claim to insert an additional provision in the proposed enterprise agreement to confirm the then current arrangements.

[66] During these negotiations, One Rail indicated that "it had not turned its mind to the matters in Darwin", "there had been no intent to address those matters", and later that "the company would not be inserting the extra annual leave and/or allowance into the Agreement."[35] The representative of One Rail also stated that "the Company has no intention to remove the additional week of annual leave or the allowance but that the company needs flexibility to remove these items should circumstances change in Darwin."[36]

[67] The minutes of the 23 July 2019 meeting relied upon by the parties then further record the following exchange:

1. KB (from the RTBU) wanted confirmation that current conditions and entitlements in Darwin would not be taken away.
2. IH (from One Rail) explained that the additional weeks annual leave (which had never been thought about by the Company) in Darwin may have been a mistake (on behalf of the Company) and that it would be unreasonable for the business unit to treat one set of employees, differently to another.
3. IH explained that the Company cannot predict what the business is going to look like moving into the future; things may continue the way they or, circumstances could change leading to expansion or contraction of the business; but in any event, flexibility to restructure is vital to the business and the Company would not be putting the extra weeks annual leave or allowance into the Agreement.
4. KB acknowledged that the Company may see fit to change rosters, but whilst the current roster arrangement remains unchanged, the RTBU would be seeking commitment from the Company regarding current entitlements.
5. IH reiterated that the Company had not turned its mind to the situation in Darwin, did not seek to get involved in this issue, and that any such commitment would be a "hollow promise" as there could be changes in relation to arrangements in Darwin at any time.
6. VH mentioned that if the Company does change things in Darwin the RTBU has the right to challenge in the FWC.
7. KB said this was a rather litigious approach.
8. IH concludes by saying that the matter would ultimately be decided by employees, but the Company believes that it has a good deal and is going to proceed by putting the Document to a vote.
9. The parties had a short break.
10. Parties returned and Unions indicated that they would not support for (sic) the Agreement.

[68] The enterprise agreement was subsequently put to the employees for approval in the form of what is now the 2019 Enterprise Agreement and despite the reservation of the RTBU on the annual leave issue (at least as at the 23 July 2019 bargaining meeting) was approved by a vote of the employees and subsequently by the Commission. The provisions concerning the annual leave arrangements were not modified from those in the 2016 Agreement considered in the 2019 Decision.

[69] There is no evidence before the Commission that the employees were informed of any implications of the form of annual leave provision as part of the pre-approval information stage.

[70] I do not consider that the conduct of the representatives of the parties in this case assists the Commission to ascertain the common objective intention of the 2019 Enterprise Agreement. The authorities[38] make it clear that the subjective statements and positions of the parties in negotiations must be treated with caution.

[71] Further, and in any event, what is revealed in the exchanges is that the RTBU was seeking to confirm what it asserted was an existing arrangement, and One Rail did not agree to amend the enterprise agreement and did not give a guarantee that it would not subsequently change the practice in relation to the "Darwin" arrangements. The enterprise agreement was not amended and, in effect, both parties reserved their position to argue the meaning of the exiting annual leave provisions. Given this, the issue between the negotiators was unresolved, and this does not reveal a common contemplation or common assumption at that level.

[72] However, the 2016 agreement, which was relevantly in the same terms, had by then been determined by the Commission in a similar roster context to mean, in general terms, that the general approach evident from Roy Hill was the objective intention of that instrument. I observe that this determination had the impact of resolving the proper application of the 2016 Agreement and impacting upon the rights and obligations of the relevant parties.[39] This is relevant as the 2019 Enterprise Agreement was made in the same relevant terms. I also note that the employer continued to provide 5 weeks of annual leave to the Berrimah Depot employees under the terms of the 2016 agreement, which continued to operate at least for a relatively short period before the 2019 Enterprise Agreement was approved.

[73] As a result, the context for the approval of the 2019 Enterprise Agreement is relevant to ascertaining the objective intention of that instrument to the extent outlined above.

7.5 Are the Berrimah Depot employees continuous shift workers under the 2019 Enterprise Agreement?

[74] I commence with the language of the enterprise agreement having regard to its context and purpose. I have outlined much of the context and purpose of the relevant provision throughout this decision. The definition set out in clause 7 is clearly designed to provide the basis upon which the entitlement to the additional week of annual leave is provided in clause 29.5. It is also designed to provide the basis for the lower payment of public holiday rates in clause 22 of the 2019 Enterprise Agreement. I will return to this second purpose.

[75] The definition must be read as a whole; however it is only the second element in the definition that is in dispute here. That is, it is common ground that the Berrimah Depot employees are "continuously rostered to work shifts 24 hours a day for seven (7) days a week".

[76] The definition provision does not define or quantify what is meant by the contested expression "regularly works on Sundays and public holidays" by reference to a particular benchmark of days. However, the term itself is ambiguous and capable of various meanings. In that light, and although not by itself determinative, it is appropriate to recognise that part of the broader context is the long history of the provision of additional annual leave to shift workers as described in Roy Hill,[40] adopted in the 2019 Decision, and inferred in the Clubs Award Decision.

[77] On that basis, it is appropriate to determine the proper application of the 2019 Enterprise Agreement to the Berrimah Depot employees on the basis that clause 7 should be considered with the following general approach in mind:

• Shift work in the order of 34 Sundays and 6 public holidays in a year may be required to constitute regularly working on Sundays and public holidays in the context of 7-day shift workers;

• Working approximately two-thirds of available Sundays and public holidays across the year is consistent with the notion of regularly working in the context of 7-day shift workers and a materially lesser amount would not meet that requirement; and

• Without a particular alternative context or contrary common intention, working only half of the available Sundays and public holidays as part of a 7-day shift operation would not represent working those days on a regular basis.

[78] This approach is consistent with that adopted by the Commission in the 2019 Decision, which determined the proper application of the 2016 Agreement that was in the same relevant terms, and the industrial historical context of provisions operating in a similar context.

[79] In relation to weight to be given to the practice of providing the additional annual leave to the Berrimah Depot employees, the authorities set out earlier in this Decision also mean that the Commission may, including where the provision is ambiguous or susceptible to more than one meaning, have regard to surrounding circumstances to assist to determine the proper meaning of the Agreement. The surrounding circumstances do not include the subjective intentions of the parties, but the relevant objective background facts might include:

• evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement - I have dealt with this above;

• notorious facts of which knowledge is to be presumed - this includes the fact of the 2019 Decision and the practice at that time; and

• evidence of matters in common contemplation and constituting a common assumption.[41]

[80] Further, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. However, such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus and post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.[42] In this case, the post-agreement conduct by reference to the 2019 Enterprise Agreement does not assist as One Rail took the view that the clause 7 did not apply to the Berrimah Depot employees and subsequently advised of that position, and the employees, along with the RTBU, disputed that stance. However, the prior application of the same provisions under the predecessor enterprise agreements is potentially relevant given the consistent payment of the additional annual leave to the Berrimah Depot employees.

[81] In AMWU v Berri, the Full Bench provided the following more extensive summary of the approach to the post-agreement conduct of the parties:

"[101] The admissibility of the post-contractual conduct as an aid to the construction of a contract is a somewhat vexed issue, in respect of which no clear line of authority has emerged.

[102] Some early High Court authority permitted the admissibility of post-contractual conduct as an aid to construction. But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible.

[103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner, a majority of the High Court adopted the 'general principle' that 'it is not legitimate to use as an aid to the construction of [a] contract anything which the parties said or did after it was made'. Of course, the expression 'general principle' is itself somewhat ambiguous, as Campbell JA observed in Franklins Pty Ltd v Metcash Trading Ltd (Metcash):

'It might mean that it is a principle that applies in all cases, or that it is a principle that usually applies, though perhaps being subject to exceptions.'

[104] As Allsop P observed in Metcash (at [6]), 'much ink has been spilt over the last 30 years on this topic'. There is a daunting array of intermediate appellate court judgements on the admissibility of post contractual conduct, but no clear consensus appears to have emerged.

[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:

'... will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.'

[106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding - a settled interpretation accepted by the parties.

[107] We also note that in Spunwill Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd:

'In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.'

[108] In the present case, one of the parties to the 2014 Agreement is a corporation and, further, the post-agreement conduct amounted to little more than the absence of a complaint about the non-payment of a laundry allowance. Such evidence is insufficient to establish a common understanding. As Gray J observed in ALHMWU v Prestige Property Services Pty Ltd:

"Care must be taken ... to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue."

[82] The evidence about this aspect is limited. The consistency of the practice to pay the additional annual leave under the predecessor enterprise agreements is clear-cut; however, it is not clear whether this was the result of inadvertence, in the sense that One Rail merely applied the practice that was in operation when it took over the business, or whether the issue had been considered by the relevant parties at any time prior to the 2019 Decision. In any event, whilst in other circumstances I would still have been inclined to give some weight to the prior practice particularly as an indicator of a common assumption, the fact that the 2019 Decision, in effect, interpreted how the 2016 Agreement was to be applied, means that little weight can be given to this aspect in resolving the ambiguity associated with the 2019 Enterprise Agreement. I have also considered the impact of the fact that it was some 8 months after the 2019 Enterprise Agreement was approved that One Rail advised the Berrimah Depot employees of the decision to implement a change in approach. For reasons also outlined above, little weight that can be afforded to this aspect in assessing the objective intention of the 2019 Enterprise Agreement.

[83] Before dealing with the practical circumstances of the Berrimah Depot employees it is appropriate to deal with one additional aspect of context relied upon by the RTBU as informing the common objective intention. The evidence reveals that One Rail paid Mr Longstaff at the lower public holiday payment provided in clause 22 of the 2019 Agreement for continuous shift workers. The implications of this payment and the factual basis for it were not put to Mr Lawrie in cross-examination but the fact of the payment was outlined in the evidence of Mr Longstaff in advance of the hearing. In that light, the fact of the payment is relevant and does reveal that One Staff's conduct in relation to the public holiday payment is not consistent with its approach to the Berrimah Depot employees' annual leave. However, it is difficult to determine whether this is the result of inadvertence as contended by One Rail, or as contended by the RTBU, evidence that One Rail objectively considers the employees to be continuous shift workers. There is also little if any evidence about the history of such payments.

[84] In the absence of evidence about this aspect, it would not be appropriate to presume that this particular issue has been considered by the parties in any meaningful sense following the 2019 Decision that interpreted the 2016 Agreement. This also means that I must allow for the prospect that this was not reflective of a common objective intention and does not challenge the approach that I have outlined above. What is clear, given that there has not been a change in roster pattern for the Berrimah Depot employees, is that if they are not continuous shift workers, the higher public holiday payment applicable to non-continuous shift workers may well have been due, and would be payable to these employees, for whatever period they were not within the scope of such employees defined in clause 7. However, this consequence is not part of the present dispute[43] and does not form part of the determination of the Commission.

[85] Turning now to the pattern of shifts worked by the Berrimah Depot employees, using the 2021 arrangements for Mr Longstaff as an example, this reveals that he is (and will be) rostered to work:

• On 31 Sundays including 3 Saturday shifts which 'cross over' into Sunday; and

• On 5 public holidays.[44]

[86] In written submissions, the RTBU accepted that the relevant employees work on average 29 Sundays and 5 public holidays (34 combined days) in the 2021 calendar year. It also posits that there are 52 Sundays and 13 public holidays in the Northern Territory for the 2021 calendar year (65 in total). I observe that there is room for debate about the assessment of the number of public holidays for present purposes, including the potential inclusion of Darwin show day. I have proceeded on the basis of 13 public holidays for present purposes noting that this is the basis advanced by the RTBU and no alternative proposition was posited.[45] I have also adopted the average Sunday and public holiday figures relied upon by the RTBU, noting that Mr Longstaff's experience is relevant and represents the high point for the case.

[87] Using the average figures for the Berrimah Depot employees, this represents approximately 56 per cent of Sundays, 38 per cent of public holidays and 52 per cent of the total days. The figures for Mr Longstaff represent 60, 38 and 55 per cent respectively.

[88] For reasons outlined earlier, it is the general characterisation of the work having regard to the extent of Sunday and public holiday work, rather than the application of a strict numerical formulae that is relevant. However, whilst the degree of Sunday and public holiday work performed by the Berrimah Depot employees is not insubstantial, it is not at a level that is contemplated by the phrase "regularly working Sundays and public holidays" when considered in its relevant industrial historical context.

[89] As a result, and given what I consider to be the objective meaning of the 2019 Enterprise Agreement, the Berrimah Depot employees are not Continuous Shift Workers.

[90] For reasons set out above I do not consider that the Berrimah Depot employees are Continuous Shift Workers as defined in clause 7 of the 2019 Enterprise Agreement. This also means that the Berrimah Depot employees are not, under the terms of that instrument, entitled to the additional annual leave provided by clause 29.5.

[91] The agreed question posed by the parties is as follows:

Are the Employees Continuous Shift Workers and therefore entitled to the (additional) Annual Leave Entitlement?"

[92] As a result, the determination of the Commission is No.

[93] I have earlier observed that there may well be consequences of this finding for the public holiday entitlements operating under clause 22.1 of the 2019 Enterprise Agreement. However, for reasons also set out above, this is beyond the scope of the present dispute and is a matter for the parties. If required, a subsequent application could be made to deal with this issue.

M Davis with D Phillips for the Australian Rail, Tram and Bus Industry Union.

A Pollock (of counsel) with permission, on behalf of One Rail Australia Pty Ltd.

[1] [2019] FWC 2502.

[2] [2015] FWC 2461.

[4] Confirmed in the approval decision - [2020] FWCA 607.

[5] Confirmed in correspondence dated 13 October 2020 attached the originating application - Form F2.

[6] See for example at Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2018] FWCFB 4362 at [26].

[7] The AMWU and RTBU were both covered by the 2016 Agreement.

[8] Para [89] of [2019] FWC 2502.

[10] See also Ramsay Health Care Australia Pty Ltd T/A Greenslopes Private Hospital v The Australian Workers' Union of Employees, Queensland [2012] FWAFB 4033.

[12] [2020] FWCFB 4762.

[16] Relying upon the principles in Browne v Dunn (1893) 6 R 67.

[17] [2017] FWCFB 3005.

[18] See also Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers' Union [2017] FWCFB 1621 at [21].

[19] [1929] AR (NSW) 498 at 503; See also City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2].

[20] Re Aurora Energy Enterprise Partnership Agreement 2002 - 2005, [2008] AIRC 1074, at para 17; See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.

[22] This decision must be applied having regard to the fact that the instrument in that matter was an award of the Commission rather than an enterprise agreement made between the employer and a majority of the employees at the time of approval. See also AWU v Pasminco Australia Ltd and ors [2003] NSWIRComm 365; (2003) 131 IR 1 for the caution required in this regard.

[23] [2013] FWCFB 8557.

[24] "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Skilled Engineering Ltd [2003] FCA 260, [18].

[25] BP (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283 cited by the High Court in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24 at paragraphs 12 -13.

[26] [2018] FCAFC 131.

[28] AB v Tabcorp Holdings Limited [2015] FWCFB 523 at [11].

[29] See Construction Forestry Mining and Energy Union v The Australian Industrial Relations Commission and Another [2001] HCA 16; (2001) 203 CLR 645, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.

[33] Clause 30.1 of the Clubs award at that time.

[34] Exhibit 4 - minutes of the 23 July 2019 bargaining committee meeting - and the evidence of Mr Lawrie.

[35] Exhibit 4 at points 20 and 22. and 23.

[38] Summarised in AMWU v Berri at [114] 5, 11 and 13.

[39] See Energy Australia Yallourn Pty Ltd v Automotive, Food, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 per Bromberg J at [64] to [67].

[41] Summarised in AMWU v Berri at [114] 11 and 12.

[43] The public holiday provision has not been the subject of any discussions as required under the DRP of the 2019 Enterprise Agreement and is not referenced in the agreed question to be determined. See Seo v Blindaree Food Group Pty Ltd [2021] FWCFB 2691 at [66].

[44] Mr Longstaff double-counted one public holiday which started on the day prior.

[45] This is also consistent with the public holidays listed by the Government of the Northern Territory.

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