CPSU, the Community and Public Sector Union v The Australian Capital Territory T/A ACT Corrective Services [2020] FWC 351 (23 January 2020)

[2020] FWC 351

Fair Work Act 2009

s.739 - Application to deal with a dispute

The Australian Capital Territory T/A ACT Corrective Services

Application to deal with a dispute regarding the application of clause C17 of the ACT Public Sector Correctional Officers Enterprise Agreement 2013-2017.

[1] On 1 November 2018 the Community and Public Sector Union (CPSU - the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the dispute resolution process of the ACT Public Sector Correctional Officers Enterprise Agreement 2013-2017 (the Agreement)[1]. The dispute concerns the application of clause C17 - Emergency Duty of the Agreement.

[2] The application was the subject of a conference on 22 November 2018 which failed to resolve the dispute. It was not disputed that in those circumstances the Fair Work Commission (the Commission) was empowered by the dispute settlement procedure in the Agreement to determine the dispute.

[3] The application was heard on 8 April and 24 May 2019. At the hearing, Mr Michael Cornthwaite (a CPSU Industrial Officer) appeared for the CPSU, while Ms Prue Bindon of Counsel appeared with permission for the Australian Capital Territory T/A ACT Corrective Services (the Respondent).

[4] Evidence for the CPSU was given by Mr Brenton Higgins, a Lead Organiser with the CPSU, Mr Ian Ryall, a former Organiser with the CPSU, and Mr Wayne Baynham, a Correctional Officer Grade 3 with ACT Corrective Services.

[5] Evidence for the Respondent was given by Mr Jon Peach, Executive Director - ACT Corrective Services.

[6] For the reasons set out below, I find that Correctional Officers employed by the Respondent are not entitled to be paid emergency duty as per clause C17 of the Agreement in circumstances where they are not on duty and are offered and accept the offer of an additional shift to fill vacancies created by staff absences in circumstances where they had no notice of such an offer prior to ceasing ordinary duty.

[7] The relevant clauses of the Agreement are set out below.

A2.1 The main purpose of this Agreement is to provide common terms and conditions that apply across the Australian Capital Territory Public Service (ACTPS) and terms and conditions that reflect the operational and business requirements of particular business units and occupational groups.

C9.1 An employee may be required or requested to work reasonable additional hours of duty at any time that the employee is required, subject to the payment for overtime in accordance with the conditions set out in this clause, and the reasonable additional hours provisions of the FW Act.

C9.7 Where an employee is required to perform overtime duty that is not continuous with ordinary duty the minimum period of overtime payable for each separate overtime attendance is four hours.

C17.1 Where an employee is called on duty to meet an emergency at a time when the employee would not ordinarily have been on duty, and no notice of such call was given to the employee prior to ceasing ordinary duty, the employee will be paid for such emergency duty.

C17.2 The time for which payment will be made under this clause will include time necessarily spent in travelling to and from duty.

C17.3 The minimum payment under this clause will be two hours.

C17.4 The rate of payment for emergency duty will be double time at the employee's ordinary hourly rate of pay.

C17.5 This clause does not apply to employees whose duty for the day is varied by alteration of the commencement of the scheduled shift to meet an emergency.

Section M - ACT Corrective Services Correctional Officers

M1.1 Section M applies to all Correctional officers in ACT Corrective Services unless specified.

M29.4 The Head of Service or delegate may approve hours additional to those specified in subclause M29.3 for urgent operational requirements.

M29.6 Subject to clause M30, where the General Manager determines that exceptional operational requirements exist, the General Manager, or their delegate, will consult with affected employees to ensure each employee is agreeable to remaining on duty beyond the end of their shift. Employees will only agree to remaining on duty where they feel they are able to continue performing their duties at an effective level.

M30.1 In an emergency - such as, but not limited to, riot, fire, escape, hostage or emergency escorts - the Head of Service, taking into consideration the personal circumstances of the employee, may direct an employee to report for duty or to remain on duty.

Section P - Alexander Maconochie Centre Arrangements

P1.1 Staffing arrangements at the AMC will be based on health, safety and security considerations for employees and detainees and the completion of activities outside the accommodation areas such as visits, programs, and education.

P1.2 The minimum staffing for the AMC will be the number of COs required to operate the basic daily routine of the AMC. The basic routine is that of releasing detainees from cells into association areas, maintaining supervision and returning detainees to cells. The Directorate and union acknowledge that the memorandum of understanding covering the AMC 12 hour roster trial remains in force and does not cease operation on the commencement of this agreement.

P1.3 Staffing levels are based on the present detainee capacity of the AMC. In the event of any infrastructure of accommodation changes and increase in detainee numbers in any particular area the parties will consult on any possible additional staffing numbers.

P1.4 The Directorate and union(s) acknowledge that where a post is in use on the day they will be filled, otherwise they will not be filled, and agree that the following CO1 posts are categorised as follows:

P1.5 Where insufficient employees are available to fill the posts required on any given day the General Manager or Deputy General Manager, after consultation with employee representatives, may scale down operations or activities for the duration of the shortfall. Reduction in activities will usually occur in non-essential posts initially.

P2.1 The General Manager has the delegated authority to fill vacant posts by using the list provided by the roster clerk in accordance with clause P7 in the event that the post needs to be filled.

P7.1 Wherever possible a temporary vacancy, at the CO1 level, of 28 days or greater will be filled on a temporary contract.

P7.2 The filling of all other CO1 vacancies will occur in the following order:

(a) By relief employees not being utilised.

(b) By casual employees.

(c) By employees not on shift called in on overtime.

(d) An employee already on shift being offered a double shift subject to clause M29.

P7.3 In the event that the available shift would take a casual employee over the allowable hours in accordance with clause M29 then another casual will be contacted. If the last available casual employee would also exceed these hours, or none are available, then overtime will be used to fill the vacancy.

P7.4 The filling of all short term vacancies at levels other than CO1 will be as per the following order:

(a) By employees on shift considered suitable for higher duties.

(b) By employees at level on overtime.

(c) By employees considered suitable for higher duties on overtime.

(d) By an employee already on shift being offered a double shift subject to the restrictions re fatigue management.

Long term higher duties will be filled on the basis of merit."

[8] The CPSU in its submissions set out the background to the dispute, stating that on 16 October 2018 Mr Peach gave notice to custodial operational employees that travel allowance and double time rates provided for in clause C17 of the Agreement would no longer be paid to staff undertaking overtime unless they were directed to report for duty. The CPSU wrote to Mr Peach on 24 October 2018 notifying him of a potential dispute regarding the issue, with Mr Peach responding on 26 October 2018 reiterating that clause C17 would only be invoked in circumstances where the employee had no option but to return to their place of work in circumstances similar to those set out in clause M30 of the Agreement.

[9] The CPSU submitted that the approach outlined in Mr Peach's letter of 26 October 2018 was inconsistent with the requirements of the Agreement, positing that clause C17 did not require the circumstances anticipated in clause M30 to have arisen.

[10] Key aspects of the CPSU's submissions included that:

• the Cambridge Dictionary defined the term 'called on' which appeared in clause C17 to mean 'ask to do';

• to qualify for 'emergency duty' an employee must be called on at a time they would not ordinarily have been on duty with no notice of such call having been given to them prior to ceasing ordinary duty, adding that it was characteristically an emergency or a serious situation by virtue of the fact that the employee was called on unexpectedly without notice;

• an emergency as anticipated by clause M30 was a situation of sufficient danger or seriousness as to empower the employer to direct an employee to return to work or remain on duty;

• clause M30 did not constrain the interpretation of clause C17 as it did not reference the latter, appeared in a different section of the Agreement and did not make any stipulation relating to rates of pay;

• if there was ambiguity in the matter, drawing on the decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri), evidence of surrounding circumstances was admissible to aid in the interpretation of the clauses, highlighting that between the introduction of clause M30 and the present dispute there had been a mutual understanding between the Respondent, employees and unions that the provision was not required to enliven clause C17;

• the evidence of Messrs Ryall and Higgins was that during bargaining for the Agreement, the CPSU, employees and the ACT Government all understood that the terms negotiated contained no loss of conditions, positing that the employer now sought to achieve an outcome that it did not address in bargaining and that the outcome sought required an interpretation of the Agreement that was not supported by the wording of the Agreement; and

• the relevant principles in WorkPac Pty Ltd v Skene (WorkPac)[3] militated in favour of its interpretation of clause C17.

[11] The CPSU's oral submissions largely reiterated its written submissions. Beyond that, the CPSU submitted inter alia that:

• the framers of the Agreement did not discuss the interaction of clauses C17 and M30, adding that the material distributed to employees explaining the terms of the Agreement made no reference to any change in respect of the operation of clause C17;

• the common understanding for a long period of time, i.e. the first three years of the Agreement's operation, was that emergency duty was a form of overtime, positing in response to a question from the Commission that Section P of the Agreement provided context to clause C17 and was not at odds with its interpretation of the provision;

• the wording of clause M30 was not new, drawing as it did on clause R21.7 of the predecessor agreement;

• prior to Mr Peach's commencement as Executive Director no link had been made between clauses C17 and M30;

• very limited weight should be given to Mr Peach's evidence as much of it was based on what had been reported to him, i.e. his evidence was hearsay in nature;

• prior to 16 October 2018 nobody from the Respondent had taken steps to apply the correct interpretation of clause C17;

• as neither Ms Smith nor Ms Beattie had been called to give evidence it was open to the Commission to conclude as per Jones v Dunkel[4] that their evidence would not have supported the Respondent's position;

• clause C17 in providing for travel time and payment at double time did something not done elsewhere in the Agreement; and

• because it was commonplace for people to be called in to fill a staffing vacancy did not mean that the situation was not an emergency, pointing to the principles regarding minimum staffing set out in Section P of the Agreement.

[12] Mr Higgins provided two witness statements[5].

[13] In his first witness statement Mr Higgins deposed inter alia that clause C17 was a core clause in the enterprise agreements which cover a range of ACT Government workplaces, adding that the core agreement also contained provisions relating to close call and on-call rosters. Mr Higgins further deposed that the interaction between these provisions had always been well understood and that the most recent round of negotiations had clarified the interaction of these provisions in the Emergency Services Agency, which is part of the ACT Government's Justice and Community Safety Directorate. More particularly, Mr Higgins deposed that in those negotiations it was reiterated that staff were either receiving an on-call or close call allowance or, if they were called in unexpectedly, received an emergency duty payment. Mr Higgins also referred to an incident involving employees of the Environmental Protection Agency where they were paid under the emergency duty provision. In addition, Mr Higgins stated in his witness statement that clause M30 did not exist prior to the Agreement, with clause C17 the only clause relating to emergency duty under previous ACT Government enterprise agreements.

[14] In his second witness statement Mr Higgins refuted aspects of the Respondent's submissions, drawing on April 2017 correspondence between the Deputy Director-General of the ACT Government's Chief Minister, Treasury and Economic Development Directorate and the CPSU setting out the ACT Government's wages policy for the 2017-2018 bargaining round and minutes from the 2011 ACT Government bargaining round. Also attached to Mr Higgins second statement were letters from 41 CPSU members who voted on the Agreement stating that it was their understanding at the time they voted on the Agreement that it did not entail any reduction to their entitlements. The letters which were in identical terms but for the signatory's personal details were all dated either 25, 26 or 27 March 2019 (except for one letter which was unsigned and undated).

[15] Key aspects of Mr Higgins oral evidence included that:

• he had no involvement in the negotiations for the Agreement;

Consolidate two clauses dealing with the same issue; crate specific headings for the different organisational areas

Clause should stand alone as it is [sic] relates to a different issue (emergency situations)

[18] Also attached to Mr Ryall's witness statement were copies of the explanatory material produced by the CPSU[9] and the Respondent[10] regarding the Agreement. Neither document refers to clauses C17 or M30.

[19] Mr Ryall's oral evidence was consistent with his witness statement, though he did attest that the CPSU had the opportunity to correct any errors in the document produced by the employer to track the progress of bargaining and that the document was not produced right through until the end of the negotiations.

[20] Mr Baynham in his witness statement[11] deposed that it was part of his duties and responsibilities to contact staff to come in and assist with staffing deficiencies. Among other things Mr Baynham deposed that when deciding who to call on to try and fill unscheduled absences the common approach was to first attempt to contact those employees who had made themselves available via an informal 'voluntary list' and that when that list was exhausted without getting the required number of people to agree to work he commenced cold calling other employees. Mr Baynham also deposed that as a CPSU delegate he had been involved in various fora in 2004 and on at least two other occasions at which the application of emergency duty had been questioned, adding that on each occasion the decision had been to maintain the application of emergency duty as it had been applied up until 1 November 2018. Mr Baynham also stated in his witness statement that he understood from all the information available to him regarding the Agreement during the consideration period for the Agreement that it would not negatively affect his entitlement to emergency duty payments.

[21] Under cross-examination Mr Baynham was questioned about the process for filling unscheduled absences. Key aspects of Mr Baynham's evidence in that regard were that people nominated to be on the 'voluntary overtime list', when he contacted people on the list they were not directed to attend work, when he called others who were not on the list they did not have to accept the offer of an additional shift and staff calling in sick was an everyday occurrence. In response to questions from the Commission, Mr Baynham stated that he could not recall a situation where anyone had been directed to come to work to backfill an unscheduled absence and that safety concerns were the reason why backfilling an unscheduled absence constituted an emergency. Mr Baynham also stated that the process set out in clause P7.2 of the Agreement was the process followed at the moment to fill temporary vacancies and acknowledged that clauses P2 and P7 of the Agreement did not refer either to staffing shortfalls as an emergency or to clauses M30 or C17. Beyond that, Mr Baynham attested that he asked CPSU delegates involved in the negotiation of the Agreement why clause M30 had been introduced given clause C17 of the Agreement, adding that their response was that clause M30 was intended to clarify the power of the Executive Director - ACT Corrective Services to override the Agreement's fatigue management provisions.

[22] The Respondent contended that payment for emergency duty only arose under clause C17 of the Agreement where an employee was directed to attend for duty to meet an emergency in circumstances where the employee would not ordinarily have been on duty at that time and was not given notice of the need to attend prior to ceasing his or her ordinary duty.

[23] The Respondent noted that the applicable principles for interpreting an enterprise agreement were recounted by the Full Court of the Federal Court in WorkPac. The Respondent further noted that the Agreement did not define the term 'emergency'. As such the Respondent drew on the ordinary modern use definition of 'emergency' in the Oxford English Dictionary[12], contending that while the definition was different from the Cambridge Dictionary definition cited by the CPSU it was clear that both definitions connoted the idea of something pressing or out of the ordinary. This, the Respondent posited, supported its interpretation of the Agreement in so far as it meant that emergency duty was payable when an employee had been called on duty without prior notice as a result of an event that had created a situation that was 'dangerous', 'serious' or 'urgently demanding immediate action', adding that such a situation was not satisfied when an employee was simply asked and agreed to perform overtime without notice. The Respondent further submitted that the phrase 'to meet an emergency' plainly had work to do in clause C17.1, positing that it required there to be an emergency as the reason for calling the employee to duty unexpectedly.

[24] The Respondent also canvassed the meaning of the term 'called' in clause C17.1 in its submissions as the Agreement did not define the term. Drawing on the definition of 'called' in the Oxford English Dictionary (under "III. Senses in which summoning, invoking, or requesting is the primary meaning), the Respondent submitted that the ordinary meaning of the term carried both an imperative sense (i.e. summon, command) as well as an optional sense (i.e. ask, invite) and that as such the dictionary meanings did little to resolve the issue in dispute. The Respondent further submitted that, when one had regard to the purpose of clause C17.1, there was a strong indication that the relevant ordinary meaning was the imperative sense as opposed to the optional sense, i.e. the term 'called' meant 'commanded' in the sense that there was no option involved as to whether to attend and that emergency duty was therefore be payable.

[30] The Full Court in WorkPac summarised the principles applicable to the interpretation of enterprise agreements as follows:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation " ... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ... ": Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited [1996] IRCA 166; at 184 (Madgwick J); at (Marshall, Tracey and Flick JJ); at [96] (Kirby J)."

[31] The principles relating to the interpretation of enterprise agreements were also set out in Berri. The principles are set out below:

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

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

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

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

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."[16]

[32] As noted in both WorkPac and Berri the resolution of a disputed construction of an agreement turns on the language of the agreement having regard to its context and purpose. In this case, clause C17 of the Agreement appears in that section of the Agreement dealing with rates of pay and allowances whereas clause M30 appears in the section of the Agreement dealing with ACT Corrective Services Correctional Officers. Both provisions need to be read in the context of clause A2.1 of the Agreement which sets out the 'Main Purpose' of the Agreement. When read in that context, clause C17 appears in that part of the Agreement which reflects "common terms and conditions that apply across the Australian Capital Territory Public Service" as per clause A2.1, while clause M30 appears in the first of four Sections which provide "terms and conditions that reflect the operational and business requirements of particular business units or organisational groups" as per clause A2.1. Also relevant is clause M1 of the Agreement which provides that "Section M applies to all Correctional officers in ACT Corrective Services unless specified" (underlining added). I note that there is nothing in either clause C17 or clause M30 that excludes the operation of either provision in respect of Correctional Officers in ACT Corrective Services, nor is there a provision in the Agreement which indicates that the ACT Public Service wide terms and conditions prevail over business unit/organisational group specific provisions or vice-versa. Taken together, the above analysis points to clauses C17 and M30 having to be read together and therefore operating in tandem in respect of Correctional Officers covered by the Agreement.

[33] It is clear from reading clauses C17 and M30 together that they use different terminology, i.e. 'called on duty' in clause C17 as opposed to 'direct an employee to report for duty' in clause M30. A key issue in this matter is whether those terms mean the same thing or alternatively have different meanings. In considering that issue I note that both WorkPac and Berri state that the starting point in interpreting an enterprise agreement is the ordinary meaning of the words. However, before exploring that issue I wish to set out some key points which can be distilled from the evidence in this case and a reading of the Agreement. Those key points are that:

[42] For all the above reasons, I find that Correctional Officers employed by the Respondent are not entitled to be paid emergency duty as per clause C17 of the Agreement in circumstances where they are not on duty and are offered and accept the offer of an additional shift to fill vacancies created by staff absences in circumstances where had no notice of such an offer prior to ceasing ordinary duty. In other words, to be eligible for emergency duty an employee who is not on duty must be directed to return to duty as a result of an emergency of the sought set out in clause M30 of the Agreement without having been forewarned of that possibility.

[2] [2017] FWCFB 3005

[3] [2018] FCAFC 131

[4] [1959] HCA 8; (1959) 101 CLR 298

[12] "(a) (The ordinary modern use.) A juncture that arises or 'turns up'; esp. a state of things unexpectedly arising, and urgently demanding immediate action."

[13] [2011] FCA 1256

[15] [2018] FCAFC 131 at [197]

[16] [2017] FWCFB 3005 at [114]

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