Fair Work Act 2009

s.739 - Application to deal with a dispute

Pacific National Services Pty Ltd T/A Pacific National

Alleged dispute about any matters arising under the enterprise agreement - meaning of various agreement clauses.

• [1] This matter concerns a dispute over the interpretation of various clauses of the Pacific National Intermodal Train Crew Enterprise Agreement 2021 (the Agreement)[1]. The named parties to the Agreement are Pacific National Services Pty Ltd (the employer/Pacific National), its employees performing work within the Agreement's classifications and the Australian Rail, Tram and Bus Industry Union (RTBU).[2]

• [2] The Agreement was approved by the Commission on 25 March 2021, to operate from 1 April 2021, and has a nominal expiry date of 31 March 2023.[3]

• [3] The RTBU has filed a dispute notice pursuant to s.739 of the Fair Work Act 2009 (the FW Act) requesting the Fair Work Commission (the Commission) conciliate/arbitrate matters arising under the Agreement that relate to conditions of employment for train drivers who work in the Intermodal Division of Pacific National.

• [4] Section 739 of the FW Act - Disputes dealt with by the Fair Work Commission, states at sub s.739(1):

"This section applies if a term referred to in section 738 requires or allows the Commission to deal with a dispute."

"If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, however described, the Commission may do so."

• [6] Clause 43 Resolution of Disputes provides at subclause 43.2.11 that where both parties agree they may 'empower' a mediator or member of the Commission to resolve a dispute by arbitration. In its application, the RTBU has identified four questions which it has submitted to the Commission to determine through arbitration. The parties have agreed that the Commission should arbitrate the four questions, although Pacific National has couched the questions differently to the RTBU. The written submissions of the RTBU also frame the questions somewhat differently from the Form F10.[4] For the purposes of this decision, the four questions asked by the RTBU will be considered as they are posed at Annexure D of the RTBU's Form F10 and should that not resolve the matters to be arbitrated, the Commission will entertain any further application of the parties.[5]

• [7] Both parties were legally represented before the Commission. The parties in prosecuting their various positions relied on the evidence of a number of witnesses who provided witness statements and reply statements:

Allan Cooper - Project Manager Victoria Bulk Rail

• [8] None of the witnesses were required for cross-examination, although some of their evidence was said to be either of little relevance, inadmissible or should be given minimal weight.

• [9] There are a number of attachments to the Agreement, and this dispute relates to Attachment 1 which is titled Rostering Guidelines. Other than question one, the balance of the outstanding issues appear to relate to whether the lift up and lay back provisions set out in clause 9 of Attachment 1 have application to subclause 3.9 Barracks working under clause 3 - Roster Changes of Attachment 1.

• [10] Attachment 1 Rostering Guidelines provides at clause 1 for a Master Roster and at subclause 1.9 for Working Rosters. Working Rosters must be posted weekly and at least nine days in advance of the Sunday on which the roster is to commence.[6] Each Depot has a Master Roster which sets out roster lines of working including rostered days off, annual leave relief lines and normal working lines. The number of roster lines varies between depots.[7]

• [11] Clause 3 of Attachment 1 is titled Roster Changes which provides for how a roster may be changed including at subclause 3.9 how a specific type of shift known as a 'barracks working' shift may be changed. A barracks working shift is where a train crew are required to complete a shift away from their home base.

• [12] It is to be noted that while the questions to be determined relate to provisions in the 2021 Agreement, the disputed agreement terms have existed since approval of the Pacific National Intermodal Train Crew Enterprise Agreement 2013 (2013 Agreement), and the interpretation advanced by Pacific National appears to have been applied during this period, although not without question by the workforce.[8]

• [13] The approach to interpreting industrial instruments is well-established in decisions of this Commission and courts. The Full Bench decision of Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[9] (Golden Cockerel) sets out the approach to be taken in interpreting enterprise agreements. Golden Cockerel stated that the general approach to the construction of enterprise agreements was as explained in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006)[10] (City of Wanneroo).

• [14] In City of Wanneroo French J, observed in relation to an award interpretation:

"The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '...the entire document of which it is a part or to other documents with which there is an association'. It may also include '....ideas that gave rise to an expression in a document from which it has been taken' - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; (1998) 80 IR 345 (Marshall J)."[11]

• [15] The Full Bench in Golden Cockerel then drew on other authorities to expand on the approach to be taken at paragraphs 20 to 22 of their decision including the decision in Kucks v CSR Limited[12] (Kucks).

• [16] In Kucks, a matter relating to the interpretation of an industrial award, Madgwick J held that that a narrow pedantic approach to interpretation of awards should be avoided and meanings which avoid inconvenience or injustice may reasonably be strained for:

"It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

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 mean 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."[13]

• [17] In 2017, a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Ltd[14] (Berri) made the following observations in relation to interpreting enterprise agreements:

"[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,[15] Gleeson CJ and McHugh J described the process in the following terms: '[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...'.[16] Or, as Kirby J put it in the same case, '[i]nterpretation is always a text-based activity'.[17]

• [18] Later on, in their decision at paragraph [114] the Full Bench determined that the summary of principles relevant to the task of construing an enterprise agreement summarised in Golden Cockerel should be modified as follows:

"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.

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

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

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

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

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

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

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

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

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

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

12. Evidence of objective background facts will include:

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

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

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

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

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

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

• [19] As a private arbitrator for the purposes of the Agreement clause 43 Resolution of Disputes, the Commission will apply the above ratio to provide an interpretation that gives effect to the terms of the Agreement construed in a practical common-sense manner as expressed in Kucks[18] above and by Kirby J in Amcor (also referred to above) that construction of an industrial agreement:

"should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement."[19]

• [20] Although as the Full Bench in Berri stated above:

"The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome."[20]

• [21] In attempting to answer the questions posed by determining the proper meaning of the terms in dispute it would appear to be a fair observation that the nature of the relevant wording provides plausible arguments for the respective positions of both parties particularly with regard to questions 2, 3, and 4. This is possibly due to the wording having been drafted by, in the words of Madgwick J, persons who 'were likely to be of a practical bent of mind'.[21]

• [22] For the reasons that follow, I have found the arguments of the employer more persuasive in arriving at what the Commission considers is a fair reading of the disputed wording when read as a whole and having regard to its context and purpose. The Commission is unable to attempt to rewrite the Agreement's terms to suit one argument over another, but is required to determine what a reasonable person would understand by the language the parties have used, without regard to their subjective intentions.[22]

Under clause 3.9.1 (Attachment 1 Rostering Guidelines) does Pacific National have to provide direct contact when providing notice? Or is a text message or voicemail acceptable?

• [23] Once the working roster is posted, Pacific National from time to time changes the working roster including rosters for barracks working by relying on the procedure in Attachment 1 Rostering Guidelines to the Agreement.

• [24] Clause 3.9 and subclause 3.9.1 of Attachment 1 Rostering Guidelines of the Agreement read as follows:

3.9 Barracks working (a shift where train crew are rostered to complete a shift at a barracks location away from their home base) can be altered after the posting of the working roster under the following conditions:

3.9.1 The employee is provided a minimum of 12 hours' notice before the original rostered sign on time of the first/ outward shift. At this time advice will be provided for both the outward and return shifts (including rostered sign on and sign off times).

• [25] It is submitted by the RTBU that the use of the word 'notice' imposes an obligation to contact the employee directly, i.e. by speaking to them.[23] It is put that without an employee having actual notice, they cannot be certain about what their rostered shift will be. The RTBU submits that leaving a voicemail or text message does not provide notice where the employee does not see the text message or listen to the voice message.[24]

• [26] Pacific National on the other hand submits that notice as per 3.9.1 can be provided by way of text message and/or leaving a voicemail message. As part of the agreed facts it is accepted that the practice of Pacific National for changes to the working roster for an employee working a barracks shift under subclause 3.9.1 occurs using the following process:

• The Labour Planner calls the relevant train crew to notify them of the shift change.
• The Labour Planner will then make changes to the driver's rostered shift times in My Connect the LMS rostering system, which is an application the driver has access to where they can see their rostered shift.
• If the driver cannot be contacted on the initial phone call, the Labour Planner will try call again at least a couple of times.
• If this process has still not succeeded in reaching the driver, the Labour Planner will notify the 'Live Run team', which is the 24/7 team that handles the live environment through to 2 days ahead.
• If the Live Run team cannot reach the driver by phone, then they will text message the driver, with the details of the roster change and ask the driver to call in to confirm the changed shift arrangement.

• • The conversation with the employee, the phone call, the text message or voicemail message says that the employee's outward and/or return shifts and sign on and sign off times have been changed and provides the new details.[25]

• [27] It is submitted by Pacific National that the general concept of providing notice requires that a communication is made by the person giving the notice and the communication has been transmitted by a means which objectively can be said to be a readily available and accessible means of communication for the relevant parties.[26]

• [28] The word 'notice' is not defined in clause 4 - Glossary of Terms of the Agreement nor used as a term of art within the Agreement and therefore must be given its plain meaning.

• [29] The Online Macquarie Dictionary includes the following under the definition of notice:

• to make known that (some procedure, event, etc.) is impending
• a note, placard, or the like conveying information or warning
• a brief written mention or account
• on notice, formally notified; forewarned

• [30] The RTBU contends that personal direct communication is the only acceptable method of providing notice. In considering the above dictionary extracts, there is no indication that 'notice' must include personal direct communication, although Pacific National accepts that this is an acceptable method of providing the required notice under subclause 3.9.1.

• [31] For the purposes of subclause 3.9.1, the parties to the Agreement did not see fit to include in the Agreement any guidance on how the notice to an employee may be conveyed. This is unlike other clauses in the Agreement that for example refer to the provision of written notice which may include email,[27] and the posting of notice on the Working Roster to provide notice to the affected employee.[28]

• [32] While referred to by Pacific National, the Commission is not persuaded that references to notice provisions in the FW Act are necessarily helpful in determining the question posed as it relates to the Agreement, whereas reliance by Pacific National on the general case law would appear to be more instructive.

• [33] In the New South Wales Court of Appeal decision Doran Constructions Pty Ltd (In Liq) v Beresfield Aluminium Pty Ltd[29], the Full Court noted with approval the decision of Hodson J in Cresta Holdings Limited v Karli,[30] where he stated:

"I do not myself regard the word `notice' as a synonym for the word `knowledge'. Notice is a word which involves that knowledge may be imparted by notice, but `notice' and `knowledge' are not the same thing, although loosely one sometimes talks as if to act with notice and to act with knowledge were indeed the same".

• [34] There is no textual indicator in the Agreement to infer that 'notice' cannot occur by voicemail or text message. In 2012, the Federal Magistrates Court of Australia held that a text message is equivalent to not only notice, but written notice, although in that matter there was no issue with the text message not having been received.[31]

• [35] The comments of Heerey J in Bluescope Steel Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[32] as to whether service of a written notice could occur by facsimile are also worth noting. Heerey J, opined that for an Act passed in 1996 where provision of written notice was required, it would be unlikely that Parliament would have intended to exclude such a common and sensible means of communication as a facsimile.[33]

• [36] As set out above, and in the evidence of Mr Cuttle,[34] Pacific National's resort to notification by means of a text or voicemail message is only after attempts to contact an employee directly by telephone have been unsuccessful. To restrict the word 'notice' to mandating actual communication to an employee is not only adding a requirement not specified in the wording of the Agreement but would render the notice requirement virtually incapable of being provided by Pacific National where an employee does not answer their telephone.[35] For these reasons the Commission is of the view that Heerey J's comments should be applied in this matter, noting that text and voicemail messages are now in everyday use and that for an Agreement approved in 2021 unless otherwise stated 'notice' to an employee of a shift change in an enterprise agreement would include "such a common and sensible means of communication" as a text or voicemail message.

• [37] In respect to whether a text message or voicemail is acceptable as a form of 'notice' for the purposes of sub clause 3.9.1, the Commission determines for the reasons given above, that the provision of a text or voicemail message is acceptable as a form of 'notice'.

How many changes can Pacific National make to the working roster on a barracks shift for:

• [38] Train drivers generally perform two types of shifts under the Agreement:

Barracks working - where drivers perform a shift that concludes at a different "barracks" location. Drivers rest at the barracks location before returning back to their local depot on a return train service after having had a rest period.

Single shifts where drivers report to duty at their local depot and return from their duties to that same depot at the end of the day.[36]

• [39] Barracks Working is defined in the Agreement in the Glossary of Terms at clause 4 as a shift where train crew are rostered to complete a shift at a barracks location away from their home base and a Barracks Location is defined as a nominated location where train crew are signed-off and are accommodated away from their home base.

• [40] The "outward journey" for barracks working is the shift when a driver leaves their local depot to the barracks where they rest. This journey is also referred to as the first shift. The "return journey" is the shift when the driver travels back to their local depot. Once a driver finishes their shift at the local depot, the driver will return to their home residence. This journey is also referred to as the second shift.

• [41] In respect of the time spent resting at a barracks location the parties agree that this can be as short as 7-8 hours or up to 32 hours. Drivers receive a barracks detention payment when a rest period exceeds 12.5 hours.[37]

• [42] The rest requirements at a barracks location are set out at subclause 5.1.3 of Attachment 1 Rostering Guidelines. The frequency of barracks working varies depending on the particular depot. Some depots in regional areas can have employees working on barracks duties up to twice per week (4 separate work shifts).

• [43] In metropolitan terminal depots there is less barracks working. In Melbourne for example, drivers perform barracks shifts around once every 7 days, but this can be as infrequent as once every 10 days.[38]

• [44] Where an employee is rostered on barracks working on the original working roster, the outward or return shifts may be changed in accordance with subclause 3.9 of Attachment 1 Rostering Guidelines. Subclause 3.9 falls under clause 3 - Roster Changes of Attachment 1 and reads as follows:

"3.9 Barracks working (a shift where train crew are rostered to complete a shift at a barracks location away from their home base) can be altered after the posting of the working roster under the following conditions:

3.9.1 The employee is provided a minimum of 12 hours' notice before the original rostered sign on time of the first/ outward shift. At this time advice will be provided for both the outward and return shifts (including rostered sign on and sign off times).

3.9.2 The sign on time for the first/ outward shift is no earlier than the original time posted on the working roster. (Note: lift up and lay back is applicable subject to clause 9, Attachment 1).

3.9.3 The second/return shift has a rostered sign off time is no later than the original posted on the working roster.

3.9.4 Provided the above conditions are satisfied the employee can be rostered on alternative work for the first/outward and or second /return shifts.

3.9.5 All conditions associated with the rostered working will be attributed to the altered shifts.

3.9.6.1 The driver will be credited the greater of the original rostered hours, changed rostered hours or the actual hours worked.

3.9.6.2 If the return shift exceeds the sign off time this time will be paid at 1.7."

• [45] The RTBU submits that the operation of subclause 3.9. is subject to clause 9 - Lift Up and Lay Back.

• [46] Clause 9 - Lift Up and Lay Back is set out below:

9.1 As part of their duties, employees covered by this Agreement may expect to be contacted for lift-up and lay-back purposes. Pacific National will contact crew directly for lift-up and lay-back purposes.

9.2 Subject to sub-clause 9.4 below, employees may be lifted up by two (2) hours and laid back a maximum of four (4) hours on blank line rosters or a maximum of three (3) hours on forecast rosters.

9.3 Pacific National will make no more than two (2) alterations to the confirmed sign-on time for blank line and no more than one (1) alteration to the confirmed sign-on time for forecast under Lift Up and Lay Back provisions. When at rest at a Barracks Location, a limit of only one Lift Up or Lay Back may be made.

9.4 Lift Up and Lay Back may only infringe on a Weekend (i.e. the one weekend in four) with the agreement of the employee concerned.

9.5 Where a Lift-Up or Lay Back is required that is beyond the limits defined in 9.2 above, agreement of the employee concerned must be obtained and the following will apply:

9.5.1 Pacific National will provide as much notification of the change as possible;

9.5.2 A standalone payment, at the rate of 1.7 times the employee's base rate, will be made for time lifted up or laid back beyond the limits outlined in sub-clause 9.2 above.

9.5.3 Payments under this provision will not be made where a payment for barracks detention, as outlined in Clause 10 below, is being made.

9.5.4 The shift limit for the shift will commence from the actual sign on time; and 9.5.5 Where an employee is Laid Back beyond the limits outlined in sub-clause 9.2 above and this results in the employee not being able to work their next rostered shift, the following will apply:

9.5.5.1 Pacific National will attempt to provide alternative work for the employee or, where this cannot be provided.

9.5.5.2 Provide the employee with a credit the rostered hours of the shift not able to be worked to the employee's Duty Cycle."

• [47] The RTBU submits that subclause 3.9 does not preclude the operation of clause 9 - Lift Up and Lay Back which they submit whilst not specific to barracks working applies generally, to include barracks working.[39]

• [48] The RTBU submits that subclause 3.9.2 and clause 9 - Lift Up and Lay Back interact and work alongside one another.[40] This is evidenced in subclause 3.9.2 which refers to the lift up and lay back provisions:

"The sign on time for the first/ outward shift is no earlier than the original time posted on the working roster. (Note: lift up and lay back is applicable subject to clause 9, Attachment 1)"

• [49] The RTBU also points to subclause 3.9.5 which states:

"All conditions associated with the rostered working will be attributed to the altered shifts_._"

• [50] The RTBU submits that it then follows that everything that would have applied to an employee's original rostered shift applies to the employee's changed roster shifts.[41]

• [51] A further example of the interaction is said to be found at subclause 9.3:

"Pacific National will make no more than two (2) alterations to the confirmed sign-on time for blank line and no more than one (1) alteration to the confirmed sign-on time for forecast (work?) under Lift Up and Lay Back provisions. When at rest at a Barracks Location, a limit of only one Lift Up or Lay Back may be made."

• [52] The RTBU states that the result of this is where subclause 3.9 has been used to make a change for forecast work, (being a lift up and lay back) no further change is able to be made as there is only an entitlement to make one change as stated under subclause 9.3, which makes it clear that there is to be no more than one alteration to the confirmed sign on time for forecast work under lift up and lay back provisions.[42]

• [53] Subclause 9.5 set out above, states that where a lift-up or lay back is required that is beyond the limits defined in subclause 9.2, 'agreement' of the employee concerned must be obtained following which certain conditions will apply including that a standalone payment at the rate of 1.7 times the employee's base rate is to be paid for the time lifted up or laid back beyond the limits contained at subclause 9.2.

• [54] The RTBU contends that the objectively ascertainable intention of the parties when having regard to subclause 3.9 and clause 9, is that the reference to 'agreement' in subclause 9.5 of the employee having to be obtained to work beyond the lift up and lay back limits in subclause 9.2 is to be read as including the words 'or upon 12 hours' notice'. This is because of the context and manner in which subclause 3.9 arose.[43]

• [55] It is submitted by the RTBU that the intention of subclause 3.9 was to allow Pacific National the ability to provide the facility of lift up and lay back for barracks working with the provision of a minimum of 12 hours' notice. It is submitted that there was never any intention that the penalty of 1.7 times the employee's base rate in subclause 9.5.2 be removed where the limits of lift up and lay back are exceeded.[44]

• [56] Further the note contained in subclause 3.9.2 which states that lift up and lay back is applicable subject to clause 9 (Lift Up and Lay Back) of Attachment 1 Rostering Guidelines, means all the conditions of clause 9 are applicable to subclause 3.9 with regard to barracks working. The fact that the note is only contained in subclause 3.9.2 is said by the RTBU not to be of any consequence as there is no need to continually note that clause 9 applies.[45]

• [57] In the view of the RTBU, by making a barracks working roster change under subclause 3.9, Pacific National are lifting up or laying back, and accordingly the provisions in clause 9 must apply.

• [58] Pacific National submits that since the insertion of subclause 3.9 into clause 3 Roster Changes of Attachment 1 Rostering Guidelines of the Agreement, it has always remunerated its employees based on its interpretation of the subclause and that subclause 3.9 is utilised on a regular basis.[46]

• [59] With regard to clause 3 - Roster Changes and subclause 3.9.5 which states that all conditions associated with rostered working will be attributed to the altered shifts, Pacific National submits, in relation to any of these roster changes, the altered shift becomes the new working roster and once the rosters have been changed, all the normal conditions, and penalties, and all the normal working arrangements associated with a working roster apply to the changed hours.[47]

• [60] Pacific National states that clause 6 - Rostered Working Time and Actual Working Time of Attachment 1 provides a distinction between rostered working time and actual working time. At subclause 6.6, employees may be required to work additional hours to those on the roster up to the maximum shift length and at subclause 6.5, start times may be varied in accordance with lift up and lay back provisions. Pacific National submits that these alterations are not a roster change but variation to start times and length of shifts.[48]

• [61] As train movements are subject to last minute changes, clause 9 Lift Up and Lay Back deals with emergencies, urgent last minute changes or exigencies. Clause 9 allows for a variation within limits to the confirmed sign‑on time after an employee has been rostered, for which there is no minimum notice period requirement, although a penalty payment applies when the notice provided is outside the time limits set out in 9.2 and the employee agrees to work outside the set limits of 9.2.

• [62] Making a change to rosters under subclause 3.9 of clause 3 - Roster Changes is said to be a change with substantive notice of at least 12 hours, whereas for urgent last minute changes clause 9 - Lift Up and Lay Back is used.

• [63] It is put that Clause 9 - Lift Up and Lay Back is not a 'roster change' as it is not contained in clause 3 - Roster Changes of Attachment 1,[49] but it is as described, a lift up and lay back.

• [64] Pacific National notes that lift up and lay back can be used for barracks working, as per subclause 9.3 which states:

"... When at rest at a Barracks Location, a limit of only one Lift Up or Lay Back may be made."

• [65] Pacific National further submits that in addition to the changes allowed under subclause 3.9, a barracks working shift may also be altered under subclause 3.7 where employees mutually exchange rostered shifts and under subclause 3.8 where employees agree with Pacific National to change existing working shifts.[50] Once changed, the lift up and lay back provisions of clause 9 then apply to the new rostered shift, which to Pacific National's knowledge is accepted by the RTBU.[51]

• [66] Pacific National contends that it is not possible to hold that the lift up and lay back provisions of clause 9 apply to barracks working changes under subclause 3.9, but not changes under subclauses 3.7 and 3.8.[52]

• [67] Pacific National submits that having made the claim to insert subclause 3.9 into the 2013 Agreement it can be safely assumed that this was done on the basis of conferring a benefit to itself.[53]

• [68] Looking at the history of the relevant Agreement clauses, it can be seen that in the Pacific National Intermodal Train Crew Enterprise Agreement 2009 (2009 Agreement) that it also contained an Attachment 1 - Rostering Guidelines and that at clause 9 the lift up and lay back provisions that exist in the current Agreement are also reflected. However clause 3 - Roster Changes of the 2009 Agreement concludes at subclause 3.7 and does not contain the current Agreement's subclauses 3.8 and 3.9.

• [69] This meant that under the 2009 Agreement, Pacific National did not have the ability to unilaterally alter a barracks shift with the provision of notice outside the limits of clause 9 Lift Up and Lay Back.[54]

• [70] It was the 2013 Agreement where the terms of the existing subclauses 3.8 and 3.9 were first introduced into Attachment 1 - Rostering Guidelines. Mr Cooper's evidence was that subclause 3.9 concerning barracks working shifts was a claim made by Pacific National.[55]

• [71] At the same time, the basis for a barracks detention payment which is paid following a train driver being at resting away or barracks location for longer than 16 hours at subclause 10.2, was reduced to a period of 12.5 hours.

• [72] Much of the witness evidence of both parties is their subjective recollections of the intentions of the parties they represented at the time of the insertion of subclause 3.9 into the 2013 Agreement.

• [73] Mr Mundey for the RTBU gave evidence that the RTBU agreed to the introduction of subclause 3.9 with certain protections in place.[56] In return for agreeing to the insertion of subclause 3.9, payment (penalty) would continue to be applied for time lifted up or laid back outside the shift limits.[57]

• [74] Mr Cooper on behalf of Pacific National stated that he was the lead negotiator for Pacific National during negotiations for the 2013 Agreement at which time he was the National Linehaul Manager for Pacific National's Intermodal business unit. Mr Cooper stated that clause 3.9 was first inserted into the 2013 Agreement as a result of a claim made by Pacific National.

• [75] Mr Cooper's evidence was that clause 3.9 was to offset the RTBU's claim for barracks detention payments to start from the 12 hour mark of barracks detention at a penalty of 1.7, which was previously 16 hours. In Mr Cooper's evidence he states that the ability to lift up and lay back was to remain. [58]

• [76] Mr Cooper states that clause 3.8 in the 2021 Agreement is the same as that inserted into the 2013 Agreement.[59]

• [77] Mr Cooper stated that reducing the barracks detention waiting period down to 12 hours,[60] a claim by the RTBU[61], from the previous 16 hours, would cost Pacific National approximately $1.5 million per annum[62] and that the flexibility introduced by subclause 3.9 would offset this cost by $100,000 to $150,000 per annum.[63]

• [78] The case law relied on by both parties makes it clear that the Commission is unable to rely on subjective evidence in ascertaining the meaning of terms in an enterprise agreement.

• [79] Clause 9 - Lift Up and Lay Back restricts the range of hours in which Pacific National can move a shift without an employee's consent, and where that consent is provided a standalone payment of 1.7 times the employee's base rate is to apply for any time lifted up or laid back beyond the limits set out in subclause 9.2.

• [80] The Rostering Guidelines set out the conditions attached to changing rostered hours, and subclause 1.7 allows Pacific National to make up to four changes to the master roster in any 12 month period without employee agreement.

• [81] Other changes are permitted for working rosters which are set out at subclauses 3.5 to 3.9:
  • Under 3.5 changes can be made to the working rosters with less than 12 hours' notice.
  • Cancellations can be made pursuant to 3.6.
  • Drivers can engage in mutual swaps of shifts under 3.7.
  • Pacific National can change the roster by consent with employees under 3.8, and
  • Changes to barracks working conditions may be made under 3.9.

• [82] On a plain reading of subclause 3.9 it provides Pacific National with a right to alter barracks working shifts subject to a number of listed conditions from 3.9.1 to 3.9.6, with the first listed condition at 3.9.1 being a requirement to provide 12 hours' notice.

• [83] The RTBU submits that subclause 3.9 is by definition a lift up and lay back provision.[64] Clause 4 - Glossary of Terms however states that where certain terms are used in the Agreement they are to be defined as set out. Where the words Lift Up and Lay Back are used in subclause 3.9.2 (although not capitalised) they are to be given the Glossary of Terms definition, this is as far as the definition extends.

• [84] Clause 9 - Lift Up and Lay Back is not described as roster change or listed under clause 3 Roster Changes but is its own separate clause in Attachment 1. It provides for the alteration of sign on times. There is no minimum notice period applicable however subclause 9.5 states that where a lift up or lay back is required that is beyond the limits in 9.2 the agreement of the employee must be obtained.

• [85] The reference at 9.5 to agreement of the employee having to be obtained is a strong indicator that the limitations of clause 9 Lift Up and Lay Back do not apply to subclause 3.9 that deals with a barracks working shift alteration where a minimum of 12 hours' notice is provided before the original rostered sign on time of the first outward shift.

• [86] While the RTBU has submitted that the objectively ascertainable intention of the parties is to read 'or upon 12 hours' notice' into subclause 9.5, alongside the word 'agreement', the RTBU has not on the evidence established that the words 'or upon 12 hours notice' reflect the parties' objective intention, particularly where this is disputed by Pacific National.

• [87] Pacific National under subclause 3.9 is able to move a barracks shift, but no earlier than the sign on time for the first outward journey posted on the working roster and on the return journey no later than the rostered sign off time than the original posted on the working roster.[65]

• [88] Subclause 3.9.2 contains a 'Note' which is peculiar to the subclause, and states 'lift up and lay back is applicable subject to clause 9'. What the note appears to clarify, is that while the sign on time for an outward shift can be no earlier than the original time posted on the working roster, Pacific National is able to utilise the lift up and lay back provisions consistent with clause 9.

• [89] In essence, the effect of subclause 3.9 is that upon no less than 12 hours' notice, Pacific National is able to reduce the time an employee spends at barracks rest. This is presumably important to Pacific National as the time spent at barracks rest before being entitled to a barracks detention payment was reduced in the 2013 Agreement.

• [90] In the context where subclause 3.9 was inserted into the Agreement as a result of a claim from Pacific National, no practical purpose is apparent for the provision of 12 hours' notice by Pacific National if agreement of an employee is required to lift up and lay back a barracks shift outside the prescribed limits of clause 9 with the concomitant penalties applying.

• [91] It would require a contorted reading of the roster changes allowed under clause 3 for only the changes that occur under subclause 3.9 with regard to a barracks shift to be subject to the limitations set out in clause 9 Lift Up and Lay Back where other changes that may occur under subclauses 3.7 and 3.8 are not subject to the same limitations.

• [92] A plain reading of clause 3 - Roster Changes and in particular subclause 3.9 with regard to a barracks shift results in there being no limit on the number of times Pacific National may alter a barracks shift after the posting of the working roster, provided a minimum of 12 hours' notice is given and subject to the conditions set out at 3.9.1 to 3.9.6.

• [93] Subclause 3.9 is not constrained by clause 9, but may be applied as per subclause 3.9.5 which states that all conditions associated with the rostered workings will be attributed to the altered shifts, thus confirming that once a shift is altered under subclause 3.9, it may further be the subject of a clause 9 variation.

• [94] While the RTBU states that there is no practical reason why the giving of 12 hours' notice can overcome the benefits an employee would otherwise receive[66] for working outside the limitations of the lift up and lay back provisions in clause 9, ordinarily the more notice an employee is provided of a shift change, the less inconvenience is caused to the employee.

If an employee rostered on a barracks shift has his shift changed are they entitled to x 1.7 and when?

• [95] The RTBU contends that train drivers are to be paid at the rate of 1.7 times for all hours changed on a barracks shift outside the limits in clause 9 Lift Up and Lay Back calculated from the start time on the original working roster. This is regardless of whether one or more changes are allowed to be made to the working roster.

• [96] Pacific National submits that the requirements of clause 9 have no application to changes made to a barracks shift under subclause 3.9 and no penalties apply to rostering changes unless the return shift exceeds the rostered sign off time as provided for at subclause 3.9.6.2.

• [97] Having held above, that the Agreement allows Pacific National on providing a minimum of 12 hours' notice to alter a barracks shift sign on and sign off times after the posting of the working roster within the limitations set out in subclause 3.9, payment at 1.7 times the base rate is only in accordance with subclause 3.9.6.2, where the return shift exceeds the sign off time.

• [98] Should however an employee have their barracks shift changed in accordance with clause 9 Lift Up and Lay Back, where for example the 12 hours' notice cannot be provided or Pacific National wishes to make other changes not permissible under subclause 3.9, such as bringing forward the start time of the rostered outward shift or pushing back the sign off time of the rostered return trip; payment at 1.7 times the base rate is payable in accordance with the terms of clause 9.

The reference to 'sign off time' in 3.9.6.2 is a reference to which roster?

• [99] At subclause 3.9.6.2, it states that:

"If the return shift exceeds the sign off time this time will be paid at 1.7."

• [100] The RTBU submits that it is a reference to the original sign‑off time.[67]

• [101] Subclause 3.9 begins by stating that a barracks working shift can be altered after the posting of the working roster under a number of specified conditions.

• [102] A condition at subclause 3.9.3 is that the second/return shift must have a rostered sign off time no later than the original posted on the working roster. Subclause 3.9.6.2 then states that if the return shift exceeds the sign off time, this time will be paid at the rate of 1.7.

• [103] As can be seen it is not permissible under the Agreement for Pacific National to vary the sign off time for a barracks roster return shift and should for whatever reason the return shift exceeds the sign off time, any excess time is to be paid at the rate of 1.7 as per subclause 3.9.6.2.

• [104] However, consistent with the conclusions set out above, where Pacific National has utilised the lay back provisions of clause 9 to alter a return sign off time it is the terms of clause 9 that determine when the rate of 1.7 is payable.

Mr R Reitano of Counsel and Mr P Pasfield, Solicitor on behalf of the RTBU

Mr L Izzo, Solicitor on behalf of Pacific National

[3] [2021] FWCA 1631

[4] Written submissions of 15 September 2021 pose questions 2 to 4

[7] Statement of A. Cuttle of 29 September 2021 at [12]

[9] [2014] FWCFB 7447

[10] [2006] FCA 813

[12] [1996] IRCA 166

[14] [2017] FWCFB 3005

[15] [2005] HCA 10; (2005) 222 CLR 241

[18] [1996] IRCA 166 at 184 per Madgwick J

[19] [2005] HCA 10; (2005) 222 CLR 241 at [96]

[20] [2017] FWCFB 3005 at Point (2) of [114]

[21] [2005] HCA 10; (2005) 222 CLR 241 at [96]

[22] [2017] FWCFB 3005 at Point (3) of [114]

[23] RTBU's written submissions of 15 September 2021 at [15]

[25] Agreed statement of facts of 7 September 2021 at [21]

[26] Written submissions of 29 September 2021 at 6.3(a)

[29] [2002] NSWCA 95 at 55

[30] [1959] 3 All ER 656 at 657

[31] Guirguis v Ten Twelve Pty Ltd & Anor [2012] FMCA 307 at [143]

[32] [2005] FCA 3

[34] Witness statement of A. Cuttle of 29 September 2021 at [30-34]

[35] Noting it is not practical to attend an employee's residence or otherwise, to provide the notice.

[36] Agreed statement of facts of 7 September 2021 at [3]

[40] Written submissions of 15 September 2021 at [20]

[45] Written submissions of 15 September 2021 at [26]

[52] PN472, Written submissions of 29 September 2021 at [7.23-7.24]

[55] Witness statement of 29 September 2021 at [7]

[56] Witness statement of 6 October 2021 at [13(c)]

[58] Witness statement of 29 September 2021 at [8(c)]

[60] Noting that the Agreement states 12.5 hours is the commencement time.

[61] Witness statement of P. Mundey 6 October 2021 at [8]

[62] Witness statement of 11 October 2021 at [9]

[67] Written submissions of 15 September 2021 at [37]

Printed by authority of the Commonwealth Government Printer