Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2021] FWC 6129 of Deputy President Bull at Sydney on 16 November 2021 in matter number C2021/3941.

[1] The Australian Rail, Tram and Bus Industry Union (RTBU) has lodged an appeal, for which permission is required, against a decision of Deputy President Bull published on 16 November 2021.[1] In that decision, the Deputy President determined four questions related to rostering entitlements and conditions for train drivers covered by the Pacific National Intermodal Train Crew Enterprise Agreement 2021[2] (Agreement) who are employed by Pacific National Services Pty Ltd (Pacific National) pursuant to consent arbitration powers conferred by clause 43.2.11 of the Agreement and s 739 of the Fair Work Act 2009 (FW Act). One of the four questions (the question) was:

"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?"

[2] The Deputy President's answer to the question was: "...the provision of a text or voicemail message is acceptable as a form of 'notice'."[3] The RTBU contends in its appeal that this answer is wrong, and that the correct answer is that clause 3.9.1 requires Pacific National to give notice by contacting employees directly by speaking to them or in such a way that the employee is made aware of the change at the time the notice is given.

[3] Attachment 1, Rostering Guidelines of the Agreement is concerned, as its title suggests, with the rostering of employees covered by the Agreement. Clause 1 of Attachment 1 provides for "Master Rosters", which set out the work which Pacific National intends should be carried out over the roster period, and "Working Rosters", which allocate employees to lines on the Master Roster and confirm their actual shifts. Other provisions of Attachment 1 provide for the alteration of the rosters in specified circumstances in order to meet changing operational requirements. Clause 3.9 of Attachment 1 is one such provision which applies in respect of "Barracks Working", a term defined in clause 4, Glossary of Terms of the Agreement to mean "a shift where train crew are rostered to complete a shift at a Barracks Location away from their home base", with "Barracks Location" defined to mean "a nominated location where train crew are signed-off and are accommodated away from their home base". Clause 3.9 of Attachment 1 provides:

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.

[4] As clauses 3.9.2 and 3.9.3 make clear, a roster change for barracks working for which notice is provided under clause 3.9.1 cannot move forward the sign-on time for the first "outward" shift nor move back the sign-off time for the second "return" shift, and this cannot impinge upon the employee's time at home off work.

[5] A statement of agreed facts that was before the Deputy President identified Pacific National's existing procedure of notifying roster changes, including pursuant to clause 3.9.1, as follows (footnotes omitted):

"21. The Company ordinarily changes the working roster for an employee working a barracks shift by using the following process:

(a) The Labour Planner calls the relevant train crew to notify them of the shift change.

(b) 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.

(c) If the driver cannot be contacted on the initial phone call, the Labour Planner will try call again at least a couple of times.

(d) 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.

(e) If the Live Run team cannot reach the driver by phone, then they will text message the driver (which the RTBU contends the driver may or may not read), with the details of the roster change and ask the driver to call in to confirm the changed shift arrangement."

[6] In his consideration of the question concerning clause 3.9.1, the Deputy President first observed that the word "notice" was not defined in clause 4 of the Agreement nor used as a term of art in the Agreement and said that it should therefore be given its ordinary meaning.[4] The Deputy President then referred to a dictionary definition of "notice" and said that there was no indication from that definition that notice had to include personal direct communication.[5] The Deputy President then said:

"[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, [subclause 21.2] and the posting of notice on the Working Roster to provide notice to the affected employee [subclause 13.13]."

[7] The Deputy President then referred to the discussion of the meaning of "notice" in the NSW Court of Appeal decision in Doran Constructions Pty Ltd (In Liq) v Beresfield Aluminium Pty Ltd,[6] and said that there was no textual indicator in the Agreement to infer that notice could not occur by voicemail or text message. The Deputy President also referred to the decision of the Federal Magistrates Court of Australia in Guirguis v Ten Twelve Pty Ltd,[7] in which it was held that a text message is equivalent to written notice, and also to the decision of the Federal Court (Heerey J) in Bluescope Steel Limited v CEPU[8] (Bluescope), which held that service of a written notice could occur by facsimile transmission since it would be unlikely that an Act passed in 1996 would be intended to exclude "such a common and sensible means of communication as a facsimile".[9] The Deputy President then concluded:

"[36] ... 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. 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."

[8] The RTBU submitted that the word "notice" in clause 3.9.1 of Attachment 1 of the Agreement, in the context of the clause and having regard to its ordinary meaning and the objective purpose of the clause, means that there must be contact with the employee directly by speaking to them or in such a way that the employee is made aware of the change. It submitted that without an employee having actual notice, they cannot be certain about what their rostered shift will be, and that the objective purpose of the clause is to ensure that employees become aware of changes to their roster. Leaving a voicemail or sending a text message, it was submitted, does not provide notice where the employee does not see the text message or listen to the voice message.

[9] The RTBU submitted that the interpretation of clause 3.9.1 adopted by the Deputy President was in error because:

(1) Although the Deputy President referred to the ordinary meaning of the word "notice", he failed to engage with it or ascribe work for it to do. The ordinary meaning included "to make known" or "formally notified" or "forewarned".

(2) The Deputy President failed to consider the purpose or object of the clause, namely that the employee know that their shift had been changed a minimum of 12 hours before the change. This object was not achieved by [s]ending a text message at 12 hours and 1 minute before the change which might not be seen for hours afterwards...".

(3) It is absurd to suggest that an employee voting on the Agreement would have understood that the purpose of a provision about being given notice was some mere technical matter which required only that a text message be sent, or a voicemail be left, which they need not ever be aware of. A common sense reading of the requirement did not support Pacific National's construction.

(4) Reliance on the judgment of Heerey J in Bluescope was misplaced in circumstances where the situation where the recipient's fax machine had been turned off or had run out of paper was "left for another day". That is, the decision concerned circumstances where the communication was in fact received.

(5) The requirement for notice in the clause should be assessed in the same light as a requirement to give notice of termination because the parties to the Agreement would have been familiar with such an obligation. Notice of termination is given when the notice is received: TWU v National Dairies Limited[10] (National Dairies); Ayub v NSW Trains[11] (Ayub).

(6) The Deputy President's approach partially implied a requirement that employees should be continually alert (even when asleep at night) to the prospect that their employer might send them a text message or leave them a voicemail.

[10] The RTBU submitted that permission to appeal should be granted because the correct interpretation of enterprise agreements is the object of the settlement of disputes over interpretation, and because the question of the meaning of the word "notice" is an important one that has not been subject to recent consideration by a Full Bench of the Commission and is significant to the interpretation and operation of the Agreement as well as other enterprise agreements. It submitted that the appeal should be upheld, the decision quashed, and an answer to the question be given in terms that notice is not given to an employee until the employee is directly contacted and becomes aware that their shift roster has changed.

[11] Pacific National submitted that the Deputy President's interpretation of the word "notice" aligns with its ordinary meaning which treats notice as a communication containing the relevant information to be conveyed. The ordinary meaning, it was submitted, does not prescribe how the communication is to be made or require the employer to check the communication has been received or understood. It was also submitted that there is no text in the Agreement which stipulates that "direct contact" is required for notice, and the industrial realities and practical considerations reinforced the ordinary usage or common law consideration of the word "notice".

[12] The underlying objective behind the introduction of clause 3.9.1, Pacific National submitted, was consistent with the rationale provided by the Deputy President in his decision. The purpose of the introduction of clause 3.9.1 was to provide Pacific National with greater rostering flexibility in situations where a shift change would only affect an employee's time spent out at barracks - that is, a change resulting in an employee leaving home later or arriving home earlier - and not an employee's personal time, and it was for this reason that Pacific National's right to adjust barracks shifts is more unfettered compared to other shift changes. The RTBU's argument to the contrary, it was submitted, failed to appreciate that there is no material impracticability caused by a delay in viewing the notice, that a period of 12 hours provides a sufficient buffer to see the notice and that employees have regular access to mobile phones. Further, it was submitted, in the absence of evidence that employees are not receiving text and voicemail message notices, it is not possible to interpret the ordinary meaning of providing notice in a manner which is anticipatory or relies on an unknown hypothetical factual scenario.

[13] We consider that the Deputy President's answer to the question was plainly correct. There are three matters which have caused us to reach this conclusion. First, "notice" is a word which has a well-established legal meaning. In Secretary, Department of Family & Community Services v Rogers, the Federal Court (Cooper J) said:

"A notice is a notification, a making known, a communication of some matter from one person to another. In the statutory context, the statute identifies the matter to be notified by the notice. Notice is given when it is received by the person to whom the notice is to be given: the giving and receiving of the notice are two aspects of the same action and are simultaneous. Consequently, the giving of notice ordinarily will require that the person to be given notice actually receives notification of the matter to be communicated."[12]

[14] However, in the Federal Court Full Court decision in Nguyen v Refugee Review Tribunal, Sundberg J said: "[a] requirement that a person be given notice of something does not demand that the thing be brought home to the person's understanding or knowledge... notice is not synonymous with knowledge".[13]

[15] In short, the giving of notice ordinarily requires the delivery and receipt of a communication about a specified matter but does not require the recipient to know of or understand the content of the communication. The Agreement does not contain any special definition of "notice", so we consider that the requirement for notice in clause 3.9.1 should be assigned this ordinary legal meaning.

[16] Second, clause 3.9.1 does not prescribe any particular method for the giving of notice, nor does it require that notice be given in writing. By contrast, where in other parts of the Agreement a particular method of giving notice is required or contemplated, this is specified expressly. The Deputy President referred to two examples of this in paragraph [31] of his decision (set out above). A further and, in light of the RTBU's submission that clause 3.9.1 requires "direct contact" to be made with the employee, more telling example is clause 9.1 of Attachment 1, which provides:

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. (underlining added)

[17] In the absence of any such specification as to the mode of the provision of notice, we consider (consistent with the decision in Bluescope relied on by the Deputy President) that notice under clause 3.9.1 may be effected by any common contemporary method of communication which can reasonably be expected to be accessible to the employee. In circumstances where the employee is known to have a mobile phone, this may include communication by text message or voicemail.

[18] Third, clause 3.9.1 places a legally enforceable obligation upon Pacific National to provide the requisite notice to employees. In those circumstances, we consider that the provision must be construed in way that permits Pacific National to discharge that obligation without some further action by the employee being required in order to effect notice. At the hearing of the appeal, the RTBU accepted that a text message could be used to effect notice under clause 3.9.1, but submitted that notice would only be given under that clause by that means if the employee actually read the text message at least 12 hours before the original rostered sign on time. That is, with respect, an untenable position since it would leave it in the hands of the employee as to whether Pacific National had discharged its notice obligation under clause 3.9.1. The employee could frustrate the provision of notice simply by refusing to read any text messages from Pacific National, and could likewise refuse to listen to voicemail messages left by Pacific National. That is an impracticable outcome unlikely to have been intended by those who made the Agreement.

[19] The RTBU's reliance on the reservation by Heerey J in Bluescope as to the situation where the recipient's fax machine been turned off or had run out of paper does not assist its case. That particular factual scenario raises a question as to whether notice could be said to have been received by the recipient. But the decision in Bluescope leaves no room for doubt that, if a facsimile message has been received on a fax machine and has printed out, notice has been effected regardless of whether the recipient has chosen to read the message or not. Likewise, the decisions in National Dairies and Ayub do not assist the RTBU's case. It is correct to say that these decisions, consistent with the established concept of notice, require the receipt of the notice in order for notice to be given. However, the receipt of notice does not mean that the content of the communication needs to be known and understood by the recipient. For example, the Full Bench in Ayub said in relation to the provision of notice of dismissal from employment by email:

"[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee's usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal." (underlining added)

[20] The RTBU was unable to identify the precise factual circumstances which led to the current dispute about the operation of clause 3.9.1 beyond saying that some employees had complained that they had not received text or voicemail messages sent by Pacific National concerning an alteration to barracks working shift times. If that means that the messages were not received on the mobile phones of employees within the requisite timeframe or at all, but were rather lost in cyberspace, then notice would not have been given as required by clause 3.9.1. The Deputy President's answer to the question does not gainsay this proposition. However, if it means that the employees simply did not read or listen to the messages within the requisite timeframe, then that by itself does not vitiate the provision of notice by Pacific National. As adverted to in the Bluescope and Ayub decisions, particular factual scenarios may arise which raise a question as to whether notice has been received. However, none was identified as the basis for the dispute in this case and accordingly, no further consideration on this score is required.

[21] Because of the nature of the issue raised by the appeal, we consider it appropriate to grant permission to appeal. However, for the reasons stated above, the appeal is dismissed.

[1] [2021] FWC 6129

[3] [2021] FWC 6129 at [37]

[6] [2002] NSWCA 95 at [55]

[7] [2012] FMCA 307 at [143]

[8] [2005] FCA 3

[10] (1994) 57 IR 183

[11] [2016] FWCFB 5500 at [26]

[12] [2000] FCA 1447 at [31]

[13] [1997] FCA 293, 74 FCR 311 at 325, also at 320 per Tamberlin J and 332 per Marshall J; see also ibid at [31], Doran Constructions Pty Ltd (In Liq) v Beresfield Aluminium Pty Ltd [2002] NSWCA 95 at [55] per Ipp AJA, with whom Mason P and Santow JA relevantly agreed.

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