s.739 - Application to deal with a dispute

Construction, Forestry and Maritime Employees Union

Chevron Glass Pty Ltd T/A Chevron Glass Royal Park

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

• [1] A dispute has arisen between the Construction, Forestry and Maritime Employees Union (Timber, Furnishing and Textiles Union) (TFTU) and Chevron Glass Pty Ltd (Chevron) concerning the Chevron Glass Pty Ltd Royal Park Collective Bargaining Agreement 2025 (the 2025 Agreement) as it relates to Chevron's factory at Royal Park in Adelaide.

• [2] The 2025 Agreement contains a "grievance / disputes procedure" and if a dispute about the implementation or operation of the provisions of the agreement cannot be resolved at the workplace level, it may be referred to the Commission for conciliation. The parties may also agree on the appointment of an "independent arbitrator"[1].
• [3] After the dispute was referred by TFTU to the Commission pursuant to s 739 of the Fair Work Act 2009 (the Act), I conducted conciliation in relation to it, but the matter was not resolved through that process. Both parties agreed that I arbitrate the matter[2]. I conducted a hearing on 19 November 2025. Mr Nichols appeared for TFTU and Mr Earles, a solicitor, appeared for Chevron after it had earlier been granted permission pursuant to s 596 of the Act to be represented by a lawyer.
• [4] Mr Wilmshurst, a former Union shop steward at Chevron Royal Park, and Mr Hay, Chevron's General Manager, both gave uncontested evidence in relation to the matter.
• [5] The parties agreed on two questions to be answered for the purposes of the arbitration:
  1. Does clause 5.2 of the Agreement (or the terms of the agreement more generally) preclude the company from implementing a roster for rostered days off?
  2. If the answer to (1) is no, what, if any, conditions are placed on the company's ability to implement a roster?

• [6] The dispute relates to a decision taken by Chevron to introduce a schedule (also variously described in the proceeding as a "roster" and a "calendar") setting out when employees will be required to take most of their rostered day's off (RDO's) they accumulate through the way they work at the Chevron Royal Park factory. Before the schedule was introduced, employees were allowed to take RDO's at times set by mutual agreement with Chevron[3].
• [7] The reason for this change is that Chevron has purchased new equipment, and it requires regular maintenance of that equipment during which time the factory must be almost entirely closed[4]. It prefers to schedule RDO's to align with these scheduled shut-downs. Part of the reason it engaged in this capital expenditure is because it was of the view that unless significant investment was undertaken in new plant and equipment, the business would become unviable[5].
• [8] The adoption of the schedule occurred after Chevron consulted with its employees during June 2025[6]. Through this process, the eventual decision was that "there may still be some flexibility as to when some individuals may take their RDO"[7]. When the schedule was implemented, some employees requested to not take the RDO at the scheduled time and bank it, and those requests were accommodated[8].
• [9] The reason some employees oppose the change is that before the introduction of a schedule, employees had more flexibility to take RDO's when they wanted to, on an individual basis, and there was no schedule.

• [10] The TFTU submits that the 2025 Agreement does not confer on Chevron a power to introduce an RDO schedule and thus it is precluded from doing so[9]. It says this is the correct interpretation of the Agreement based on its ordinary and plain meaning. It supplements this core submission with various arguments.
• [11] It submits that the underpinning modern Award, the Joinery and Building Trades Award 2020 (the Award), provides various means by which an employer could introduce an RDO schedule. It notes that while the 2025 Agreement incorporates, and applies wholly in conjunction with the Award[10], clause 5.1 of the 2025 Agreement provides that this clause operates "in complete substitution for the provisions of clause 16, 17 and 25 of the Award - the clauses the TFTU say are those which would allow for the unilateral introduction of an RDO roster (particularly clause 17.2 of the Award)[11]. It says Chevron cannot read these clauses back into the 2025 Agreement when they have been specifically supplanted by clause 5.1.
• [12] TFTU submits that the "ordinary meaning" of clauses 5.2.1 and 5.2.4 of the 2025 Agreement operates to give employees flexibility in taking rostered days off. It mentions (although not with the emphasis suggested by Chevron) that clause 5.2 contains provisions regarding "flexible" rostered days off[12] - apparently a reference to the sub-heading of the clause which includes the word "flexible".
• [13] TFTU also submitted that as clause 5.1.4.1 of the 2025 Agreement provides that the minimum period of operation for "any one shift is 5 days beginning with a Monday", and that five days' notice must be given for a "change of shifts", which must be "mutually agreed" (albeit "no employee can refuse indefinitely") that this means the introduction of an RDO schedule, which would invariably mean that sometimes a sequence of work would be less than 5 days (4 days, and then an RDO), is not permitted.
• [14] It also submitted that a related agreement, the Chevron Glass Pty Ltd Melrose Park Collective Bargaining Agreement 20024 (the Melrose Park Agreement), which was negotiated by the same parties for a different worksite, contains identical terms in relation to RDO's, except that the relevant clause includes the provision that "Management shall arrange an RDO schedule". It said that the omitting of this provision for the 2025 Agreement was "purposeful", and "evidences that parties' intent to maintain flexibility over how rostered days off were taken[13].
• [15] It also submits that the industrial reality (presumably the state of affairs before the introduction of the schedule when RDO's were taken at various times by mutual agreement) evidences a "common understanding" of the meaning of the clause, referring to the decision of the Federal Court in Shop, Distributive and Allied Employees' Association v Woolworths Limited[14].
• [16] To some extent submissions like this one were characterised by Chevron as an argument that it is "custom and practice" that the Union says precludes it from introducing its RDO schedule or confers a right upon employees to the continuation of the "flexibility" they have enjoyed. I did not understand TFTU's submissions to be put that highly, but it did appear the previous state of affairs, which, it was conceded, had operated for quite some time, supported the notion that in the absence of a specific entitlement in favour of Chevron to introduce an RDO schedule, those state of affairs should not be permitted to be altered. Mr Wilmshurst's evidence, which related to the circumstances in which the flexible approach to the taking of RDO's was adopted in about the mid 1990's, seemed to be aimed at a submission along those lines.

• [17] Chevron submitted that it has a managerial prerogative to roster employees when to work[15], within the boundaries of the terms of the agreement. As I understood it, it submitted that the right to direct when RDO's are taken is a corollary of that prerogative.
• [18] In this regard, Chevron referred to the decision of Lawler VP in Construction, Forestry, Mining and Energy Union v HWU Mining Limited[16], who said in that decision (citations omitted):

"If an employer's exercise of managerial prerogative is not prevented by statute, an award, a statutory agreement or the contract of employment, the basis for a tribunal such as Fair Work Australia, acting as an arbitrator of a dispute, interfering with what would otherwise be a lawful exercise of managerial prerogative (such as the making or varying of a policy which employees are required to observe) was laid down Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW)7 (XPT case):

It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable."

• [19] Chevron submits that the use of the term "flexibility" throughout the Agreement (including in its objects) supports the notion that the Agreement should be interpreted as requiring the workforce to be flexible to accept changing business conditions and requirements, unless there is intention to the contrary, weighing against the Union's preferred interpretation, which it said sought to reduce flexibility[17].
• [20] Chevron also submitted that if the 2025 Agreement was interpreted in the manner TFTU contends, then clause 5.2.3 of the Agreement, which deals with the pro-rating of RDO entitlements would make no sense, as employees would never opt to take an RDO without a full day's entitlement having been accrued - suggesting the Agreement must envisage circumstances in which an employee could be required to take an RDO at a particular time. Similarly, it suggested clause 5.2.4, which provides for circumstances in which an employee agrees to work on their RDO, suggests in favour its interpretation because it uses the word "scheduled" RDO[18].
• [21] As mentioned above, Chevron characterised the TFTU's argument as to some extent being based on the proposition that a custom and practice exists as to how RDO's are taken[19]. It asserted that at no stage have employees been entitled to or able to take an RDO "whenever they want" and that taking RDO's had always been subject to management consideration and approval based on operational requirements[20]. It also took me to the decision of Saunders DP in Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union v GrainCorp Operations Limited[21], a decision which dealt with the concept of an "industrial custom and practice" and in which the Deputy President said:

"I therefore reject the MUA's contention that the Commission can, when acting as a private arbitrator, determine and enforce an alleged custom and practice in circumstances where the applicable industrial instrument does not contain any term dealing with a custom and practice and there is no contention that the custom and practice is sourced in an employee's contract of employment. In order for a custom and practice to be legally enforceable, there must be a term in an industrial instrument such as an enterprise agreement, or a common law contract, which imposes an obligation on a party to maintain or preserve the custom and practice.[22]"

• [22] Chevron also submitted, based on evidence from Mr Hay, that the inclusion in the Melrose Park Agreement of a reference to a schedule was for the purposes of changing a custom at that site to rely on the construction industry RDO calendar, suggesting that for reasons such as this, reliance of evidence of past negotiations should be viewed with caution[23].

• [23] The principles governing the manner in which an enterprise agreement is to be construed are well settled. Both parties took me to the Commission's decision in AMWU v Berri Pty Limited[24]. A more recent expression of the principles was set out by a Full Bench of this Commission[25]:

"In summary, the starting point is the ordinary meaning of the words, read as a whole and in context. Context may be found in the provisions of the entire enterprise agreement, or in the arrangement and place of the words in the enterprise agreement and may extend to other documents with which there is an association. The statutory framework under which the enterprise agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is relevant, as is the evident purpose of the provisions or expressions being construed. A purposive approach is preferred to a narrow or pedantic approach, as such documents "are not always drafted carefully by lawyers or professional drafters" and the framers of the agreement may not have paid attention to "legal niceties and jargon". However, the task remains one of interpreting the document, and not to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the instrument or what the Commission might consider to be the preferrable outcome."

• [24] I have had regard to these principles in my approach to the questions I am asked to determine in this matter, as I have, the similarly well-established principle above that an employer's lawful managerial prerogative, exercised in a manner that is not unreasonable or unjust, should not be interfered with unless it is limited by statute, industrial instrument or contract.

• [25] TFTU's core argument - that if a specific power to create a schedule for the taking of RDO's does not exist, it is precluded from doing so - lacks merit. It seems to me that the establishment of a schedule as to when RDOs are to be taken is an entirely reasonable exercise of its managerial prerogative to run its business. If the enterprise agreement negotiated with the Union said something different, it would be an entirely different story. But it does not.
• [26] The manner in which Chevron is entitled to manage hours of work is impacted upon, to some extent, by the terms of the enterprise agreement. For example, clause 5.1.2 sets out the various "shift times" to be worked by employees, and it appears changes to these shift times are to occur only through negotiation "within the terms of the Agreement"[26]. Clause 5.1.3 of the Agreement provides for "normal" staggered starting and finishing times, which may be altered by mutual agreement or the provision of five days' notice. In respect to RDO's, employees who have banked up to a maximum of two RDO's must take their next RDO before the next one accrues[27].
• [27] But there is no further explicit limitation upon the manner in which Chevron might administer the taking of the RDO's employees are entitled to accrue under the agreement.
• [28] It is not the case, and indeed TFTU did not seek to argue, that the circumstances of the exercise of the Chevron's managerial prerogative to set out a schedule for RDO's is unreasonable. I note the evidence (uncontested) that Chevron introduced the change by consulting with its employees and has implemented it in a manner that is flexible. The change has not been implemented in a manner that is unreasonable.
• [29] Whether the introduction of a schedule means a change to the way these things were done in the past (whether by way of the operation of a previous industrial mandate or not) means little, provided the change is implemented in a manner otherwise consistent with the Agreement (such as in relation to consultation obligations). I agree with the determination made by Saunders DP I have extracted above: for me to enforce (by way of a finding through arbitration) a custom and practice, a term giving effect to custom and practice must exist. The TFTU acknowledge that no such term exists.
• [30] I do not agree that the administration of RDO's in the past, without use of a roster or schedule, evinces a "common understanding" of the meaning of the clause itself. I also do not agree that the presence of a clause facilitating the introduction of an RDO schedule in either the Award or in a similar agreement, such as the Melrose Park Agreement, indicates that it must be concluded that a prohibition exists in the 2025, somehow by way of omission. In relation to both of these submissions, I am reminded of the comments of Gray CJ in decisions such as SDA v Woolworths[28], in which his honour observed that in relation to the "limited" relevance of the parties' conduct to the task of construing an enterprise agreement, "there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence to its true meaning"[29].
• [31] Evidence of such clarity is not before me in this matter. Chevron's administration of RDO's in the past is not clear evidence as to its understanding of the meaning of the Agreement. Nor is the decision - made for whatever reason - to include a particular clause in the Award or in another Agreement, but not this one.
• [32] In so far as TFTU placed reliance on the use of the word "flexible" in the sub-heading of the clause which deals with RDO's (resulting in the heading "Flexible Rostered Days Off [my emphasis]") I do not consider the inclusion of the word is of such a significance as to introduce constraints on Chevron preventing it from creating a schedule for RDO's to be taken. Indeed, while this appears to be mentioned in the TFTU's submissions[30], it did not appear to be a point it placed any great emphasis upon.
• [33] I do not agree that clause 5.1.4.1 of the 2025 Agreement, which provides that the minimum period of operation for "any one shift is 5 days beginning with a Monday" thus preventing a four day working period, where a fifth day might be a scheduled RDO. I note that when employees take RDO's, whether as scheduled or by way of mutual agreement, invariably, a work period of less than five days results. Thus, the agreement must envisage some circumstances in which a period of work may be less than five days and clearly does not operate so rigidly to prevent this from occurring in such circumstances.
• [34] Having considered the submissions of the parties, I do not consider that the 2025 Agreement precludes Chevron from implementing a roster in relation to the taking of RDO.s For the reasons I have given, I consider the answer to question 1, as posed by the parties, is "no".

• [35] Question 2 asks me to consider that if Chevron is not precluded from introducing a roster or schedule in relation to RDO's, what if any conditions are placed on Chevron's ability to do so.
• [36] During the hearing of this matter, TFTU confirmed that if my answer to question 1 is "no", it does not contest the answer contended for by Chevron in relation to question 2.
• [37] Chevron contends that if it "has the discretion to roster employees as it sees fit", this is subject to:
  1. the specific limitations on the rostering a day worker to perform shift work as set out in clause 5.1.4.1 of the Agreement; and
  2. where there is to be a change to regular rosters or hours of work, following consultation; and
  3. taking into account any decision of the Consultative Committee which may (but is not required to) consider changing work practices as part of its remit; and
  4. any change to the rostering provisions not being unfair or unreasonable so as to warrant the Commission to otherwise exercise private arbitral power over a managerial decision.
• [38] I had some difficulty understanding the role of the consultative committee referred to in the 2025 Agreement. The Agreement provides, at Appendix A, for the "constitution" of a consultative committee, which provides among other things that "all decisions are to be made by unanimous agreement" (Appendix A, part F). Clause 2.3 of the 2025 Agreement, which provides for a grievance and disputes settlement procedure, allows for a grievance or dispute to be raised with a member of the consultative committee and for the matter to be raised at a meeting of that body.
• [39] Chevron submitted that the intent of Appendix A, part F is that if a unanimous decision of the consultative committee is made, it is "obliged to take it into account" in making some sort of change which is the subject of such a decision - presumably - including in relation to rostering. This is perhaps not made explicit in the 2025 Agreement but appears to be the mutual understanding of Chevron and the Union.
• [40] I do not agree with the formulation, submitted by Chevron (and apparently agreed to by TFTU) that it has "discretion to roster employees as it sees fit", subject to the matters it has set out in its submissions.
• [41] A preferable formulation is that Chevron in "implementing a roster", is required to comply with all of the provisions 2025 Agreement as are relevant, and any applicable contractual obligations, and including the constraints set out in its submissions, including, to the extent relevant, taking into account unanimous decisions of the consultative committee.

Does clause 5.2 of the Agreement (or the terms of the agreement more generally) preclude the company from implementing a roster for rostered days off.

If the answer to (1) is no, what, if any, conditions are placed on the company's ability to implement a roster?

• [43] In "implementing a roster", Chevron is required to comply with all of the provisions 2025 Agreement as are relevant, and any applicable contractual obligations, including, to the extent relevant, taking into account unanimous decisions of the consultative committee, and including:
• [44] the specific limitations on the rostering of a day worker to perform shift work as set out in clause 5.1.4.1 of the Agreement; and
  1. where there is to be a change to regular rosters or hours of work, following consultation; and
  2. taking into account any decision of the Consultative Committee which may (but is not required to) consider changing work practices as part of its remit; and
  3. any change to the rostering provisions not being unfair or unreasonable so as to warrant the Commission to otherwise exercise private arbitral power over a managerial decision.
• [45] The dispute is determined on this basis.

[2] Respondent's Outline of Argument [7]

[3] Affidavit of Ian Hay[8]; Witness Statement of Paul Wilmshurst [5] - [8]

[9] Applicant's Outline of Submissions [20]

[11] Applicant's Outline of Submissions [16]

[14] (2006) 151 FCR 513; [2006] FCA 616

[15] Respondent's Outline of Argument [19]

[16] [2011] FWA 8288; (2011) IR 194

[21] [2020] FWC 6186

[24] [2017] FWCFB 3005

[25] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Manildra Energy Australia Pty Ltd [2025] FWCFB 149 [43]

[26] The last sentence of clause 5.1.2 of the 2025 Agreement, which sets out a list of day, early morning, afternoon and night shift times, says "Any other shifts will be negotiated within the terms of this Agreement".

[27] Clause 5.2.4 of the 2025 Agreement says that "Employees who have banked up to a maximum of 2 RDO's must take their next RDO within the week of the next due date", which I consider to mean within a week of the next accrual of the next RDO.

[28] (2006) 151 FCR 513; [2006] FCA 616

[30] Applicant's Outline of Submissions [15]

Printed by authority of the Commonwealth Government Printer