The Appeal to this Court
24 Whilst it is trite that the appellant must demonstrate legal, factual or discretionary error to succeed, this case turns upon the correct meaning of an industrial agreement in its application to undisputed facts. The meaning of the clauses in issue is a question of law where as Perram J observed in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93 at [45]:
…At one extreme, where no deference at all is shown to a trial judge's conclusions, are errors of law. An appellate court is not influenced in its view of the law by the conclusions of a trial judge and, in this case, mere disagreement on the part of the appellate court with the trial judge will justify the conclusion that an error has been made.
25 Allsop CJ and Markovic J agreed, in substance, with Perram J.
26 The grounds of appeal provide:
1. The primary judge erred by:
a. finding at [47]-[50] and [55]-[56] that the documents constituting the arrangement for the Applicant to work on Saturdays were not part of his regular or rolling roster to work and in doing so failing to take into account:
i. the terms of the Metro Tasmania Bus Operators Agreement 2013 and Metro Tasmania Bus Operators Agreement 2016 (the Enterprise Agreements) as a whole;
ii. the industrial context and purpose of the Enterprise Agreements and the customs and working practices in which they operated;
b. finding at [58]-[59] and [70] of the Primary Judgement that what occurred when the Applicant worked on Saturdays was an alteration or variation of the normal or rolling roster;
c. finding at [60] of the Primary Judgement that the arrangement under the Memorandum of Understanding required the Respondent to work on a "rostered day off' as that term appears in clause 21.9 of each of the Enterprise Agreements;
d. finding at [70] of the Primary Judgment that as the Applicant worked on 24 Saturdays which were marked "off' on the regular roster, clause 21.9 of the Enterprise Agreements were invoked;
e. declaring at [70] that the Appellant had breached clause 21.9 of the Enterprise Agreements; and
f. failing to find that:
i. the Applicant was rostered on to perform the regular roster to work on each of the 24 Saturdays in accordance with clause 21.1.1 of the Enterprise Agreements;
ii. the Applicant was not "rostered off' on any of the 24 Saturdays within the meaning of clause 21.9 of the Enterprise Agreements;
iii. clause 21.9 was not engaged; and
v. there was no underpayment of penalty rates under clause 21.9 of the Enterprise Agreements.
2. The primary judge erred by:
a. finding at [54] of the Primary Judgement that the disposition of the claim was dependant on whether the factual scenario fell within scenario (a) or (b) at [53] of the Primary Judgement; and
b. failing to find that the arrangements under the Memorandum of Understanding established an agreed process for compiling and conveying a normal or regular roster of work required to be performed on Saturdays in accordance with clause 21.1.1 of the Enterprise Agreements.
3. The primary judge erred by finding at [64]-[66] of the Primary Judgment that the words "DOC" did not limit the operation of clause 21.9 of the Enterprise Agreements to situations in which the Appellant cancels a "day off' unilaterally.
4. The primary judge erred by finding at [69] of the Primary Judgment that the subsequent conduct of the Appellant to incorporate Saturday work into the rolling roster was "telling" and in so doing had regard to, and placed weight on, an irrelevant consideration.
27 Despite the number of grounds, counsel for the appellant Ms Bulut in her written case succinctly stated the central error that the appellant asserts:
The single question for the appeal (notwithstanding the four articulated grounds of appeal) is whether the primary judge erred in law in finding that the rostering practice adopted by Metro Tasmania with respect to Saturday work enlivened the operation of clause 21.9 of the two Agreements, in turn requiring Metro Tasmania to pay Mr Scatchard double time (rather than time and a half) for work performed on Saturdays.
28 The essential error that counsel emphasises is that the primary judge erred in that she ought to have construed the reference to a roster in the Agreements as meaning, in this case, a combination of the weekly and weekend roster. Or, expressed slightly differently, as comprising one roster with two components.
29 In contrast, counsel for the respondent Mr Reitano submits that the ordinary meaning of the word roster is a plan or timetable or a document that records when a person is and is not required to work. Accordingly, on the facts, the notation "OFF" in the weekly roster is sufficient to engage the operation of cl 21.9 where, as a fact, Mr Scatchard chose to work on one or more of those days and in accordance with the Saturday roster. Put another way, it is submitted that properly construed the Agreements only contemplate the existence of a single roster, save for the special roster which means by cl 4 a roster to provide special services on any day outside of the regular roster. The basal submission put to me is that "[t]he notion of multiple rosters is not something that is known to the Agreements."
30 With respect to the learned primary judge, in my view one must read the weekly roster and the Saturday roster together with the consequence that cl 21.9 is only engaged on the facts of this case where an employee is entitled to a rostered day off (as specified on the weekly roster and the Saturday roster), but nonetheless is required to or chooses to work. My reasons for that conclusion may be shortly expressed.
31 The principles that apply to the construction of enterprise Agreements are straightforward and well understood. A convenient summary is set out in the decision of the Full Court in James Cook University v Ridd (2020) 278 FCR 566; [2020] FCAFC 123 at [65], Griffiths and SC Derrington JJ:
The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]).
(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind" (Kucks v CSR Ltd (1996) 66 IR 182 at 184; Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]). The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose" (Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]). It may extend to "… the entire document of which it is a part, or to other documents with which there is an association" (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175 at 178).
(iv) Context may 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).
(v) Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form …" (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518).
(vi) A generous construction is preferred over a strictly literal approach (George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]), but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties" (City of Wanneroo v Holmes (1989) 30 IR 362 at 380).
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]).
32 On appeal to the High Court, Ridd v James Cook University (2021) 95 ALJR 878; [2021] HCA 32, and in the joint reasons at [17], Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ made the obvious point:
…Industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests.
33 The Agreements do not define what is meant by a roster or prescribe its form. I have no hesitation in accepting the submission that a roster must have its ordinary and natural meaning which the primary judge set out at PJ [48] by reference to the decision of Logan J in BHP Coal. However, delving a little deeper into various clauses, what becomes clear is that the Agreements identify components of the content of a roster in a non-prescriptive way.
34 Focusing upon the 2016 agreement, the following clauses are relevant to full time employees. By cl 12 employment is fortnightly and a full-time operator is engaged to work an average of 38 ordinary hours per week. Clause 19 provides that the ordinary hours of work shall be 76 per fortnight and worked within these spreads and patterns of hours identified at subclauses 19.1 - 19.4. Day workers must work ordinary hours between 6 am and 6 pm Monday to Friday with a minimum of 7 hours and a maximum of 9 hours per shift with not more than 10 rostered shifts per fortnight. For shift workers, the ordinary hours of work are 76 per fortnight which "shall be worked in accordance with a roster" which conforms to subclauses 19.2.2 and 19.2.3. Read together these clauses require that rosters "shall be arranged" to avoid working beyond 9 hours per day and with spreads extending beyond 12 hours per day. A shift worker may be called upon to work a spread shift on any day, including Saturday, Sunday or a public holiday. Spreads shall be rostered with a break of at least one hour and 30 minutes and duties on a spread are required to be performed with a minimum of 7 hours and a maximum of 8 hours and 30 minutes.
35 Clause 20 makes it clear that the purpose of a roster is to meet the operational requirements of the employer whilst taking into account the welfare of employees. To that end clause 20.1 makes provision for the parties to examine the rostering practices and procedures to improve working conditions in accordance with the project scope identified at appendix A. Neither counsel suggested that this clause or the appendix assist in the interpretation task.
36 Clause 21, which is limited in its application to shift workers, imposes an obligation: operators shall work at such times as may be required in accordance with a roster, subject to the ordinary hours limit specified at cl 19. Shift workers may be required by roster to work day and night shifts on alternative weeks. By clause 21.1.2 a shift worker must not be called upon to commence a new shift unless he or she has had a break of at least 10 hours. Further, by clause 21.1.3, save for an irrelevant exception, a shift worker shall not be rostered to work more than one shift in each 24-hour period. Next follows clause 21.1.4 which requires that operators "shall be rostered off duty on 2 clear days in each rostered week and as far as practicable on alternate Sundays". Clause 21.1.5 imposes a limit upon the ability of the employer to create special rosters or to make substantial alterations to an existing roster. In either circumstance notice "shall be conveyed" to an operator 14 days before commencement. Rosters of that character must not be altered "other than for unexpected or unavoidable causes" beyond the applicant's control.
37 Shift work on a Saturday or a Sunday attracts the penalties that are provided for at clause 21.8: time and a half for Saturday work and double time for Sunday work, save for shifts that commence before 6 pm on a Friday or a Saturday.
38 By clause 21.10 where the employer requires an operator "to change from their normal shift roster" without giving 48 hours' notice of the change, the operator is entitled to receive a penalty payment in addition to normal salary at overtime rates until 48 hours has elapsed.
39 And finally, there is clause 21.9. In my view the plain meaning of the text of this clause, read in context with each other relevant provision, is that working on a rostered day off means simply working on a day that, in accordance with a roster, the operator would not have worked, either voluntarily or by compulsion. Thus, the central question becomes: what roster did the appellant work to? In my view the straightforward answer is the roster as set out in each of the fortnightly Monday to Friday rosters and the six monthly weekend roster. Those documents must, in my view, be read together. It is quite artificial and strains the language of the Agreements to conclude, as submitted by counsel for the respondent, that the Agreements do not contemplate the existence of more than one roster. The error in that approach is that the Agreements do not require the roster to be in a single document. It is quite logical for the fortnightly week day roster to mark each Saturday, in the case of Mr Scatchard as "OFF" because it is not a Saturday roster.
40 There is a further reason why the respondent's arguments cannot be accepted. The appellant did not deprive the respondent of an entitlement not to work as rostered. Rather, by choice the respondent decided that he would be rostered to work on the Saturdays that he determined. As a matter of ordinary language this is not working on a rostered day off that is cancelled within the meaning of cl 21.9 read with the definition of "DOC" at cl 4. In the context of the Agreements, to cancel a rostered day off means to take it away and deprive the employee of it. Factually that is not what occurred when the respondent rostered himself to work.
41 That conclusion holds even if the respondent did not initially write his name on the volunteer sheet and only later wrote his name into one or more blank cells on the six monthly weekend roster. The evidence that I have set out is ambiguous on this issue and the primary judge did not make a distinct factual finding about it. However, if that is what occurred then once the respondent made the decision to work on a Saturday by entering his name into a cell, it became his roster to be read in conjunction with the fortnightly roster.
42 For these reasons in my respectful view, the primary judge erred, not as a matter of principle in the approach required to be applied to the interpretation of the Agreements, but rather in her pivotal reasoning at PJ [55]- [56] to the effect that the roster could not be comprised of two documents or two parts which then led her Honour to the erroneous conclusion at PJ [59] that what occurred in this case was an alteration of an existing roster within the meaning of cl 21.1.5, upon publication of the six monthly Saturday roster. In part these errors can be traced to her Honour's interpretation of the MOU at PJ [58] as contemplating a distinct or "stand alone" Saturday roster. Her Honour with respect erred in employing the MOU to interpret the Agreements in circumstances where the Agreements prevail and are clear in meaning.