Fair Work Act 2009

s.160 - Variation of modern award

Application to vary clause 22.10 of the Road Transport and Distribution Award to remove ambiguity or uncertainty

• [1] A dispute has arisen between Toll Transport Pty Limited (Toll) and the Transport Workers' Union of Australia (TWU) in relation to certain aspects of Toll's operations at Tomago in New South Wales, insofar as they relate to shiftwork performed at that site. That dispute has manifested in an application by the TWU to the Fair Work Commission (Commission), seeking to resolve the dispute pursuant to the dispute resolution procedure in the Toll - TWU Enterprise Agreement 2021-2023 (Toll Agreement). The Toll Agreement incorporates the Road Transport and Distribution Award 2020 (RTD Award).

• [2] Toll is covered by the RTD Award. It commenced operation on 1 January 2010.

• [3] A significant aspect of the dispute between Toll and the TWU relates to what is meant by clause 22.10 of the RTD Award (as incorporated into the Toll Agreement), which provides as follows:

"Rate for non-continuous afternoon or night shift

Shiftworkers who work on any afternoon or night shift which does not continue for at least 5 consecutive afternoons or nights must be paid at the rate of 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary hourly rate thereafter for the shift."

• [4] Toll contends that the wording of clause 22.10 of the RTD Award gives rise to two, objectively ascertainable alternative views as to its meaning:

(a) the Individual View, which would entitle an individual shiftworker working on any afternoon or night shift to the penalties if that shiftworker themselves did not work "at least 5 consecutive afternoons or nights" (as contended for by the TWU); or

(b) the Short Shift View, which would entitle an individual shiftworker working on any afternoon or night shift to the penalties if the employer's afternoon or night shift arrangement or roster itself did not continue for "at least 5 consecutive afternoons or nights" (as contended for by Toll).

• [5] In an attempt to resolve the dispute, Toll has made the present application to the Commission, pursuant to section 160(2)(b) of the Fair Work Act 2009 (Cth) (Act), seeking that the Commission vary clause 22.10 of the RTD Award to remove an ambiguity or uncertainty pursuant to section 160(1) of the FW Act, such that it accords with the Short Shift View. The variation sought by Toll is to include the words "shift roster" as follows in clause 22.10 of the RTD Award:

"Shiftworkers who work on any afternoon or night shift which shift roster does not continue for at least 5 consecutive afternoons or nights must be paid at the rate of 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary hourly rate thereafter for each shift."

• [6] Toll's application to vary clause 22.10 of the RTD is supported by the Australian Industry Group (Ai Group), Australian Business Industrial (ABI), and the National Road Transport Association (NatRoad). The TWU opposes the application.

• [7] On 6 December 2022, I conducted a hearing in relation to Toll's application to vary clause 22.10 of the RTD Award. Toll's only witness in the matter, Ms Louise Elks, Senior Manager, Human Resources, was not required for cross examination. Her witness statement was tendered into evidence.

• [8] The power to vary an award to remove an ambiguity or uncertainty is contained in s 160 of the Act. It provides:

"160 Variation of modern award to remove ambiguity or uncertainty or correct error

(1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or

(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or

(d) if the modern award includes outworker terms - on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.

• [9] Section 165 of the Act governs when a variation determination comes into operation. It provides:

"165 When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages

Determinations come into operation on specified day

(1) A determination under this Part that varies a modern award (other than a determination that sets, varies or revokes modern award minimum wages) comes into operation on the day specified in the determination.

Note 1: For when a modern award, or a revocation of a modern award, comes into operation, see section 49.

Note: For when a determination under this Part setting, varying or revoking modern award minimum wages comes into operation, see section 166.

(2) The specified day must not be earlier than the day on which the determination is made, unless:

(a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

(b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day."

• [10] The Commission may exercise the power of variation granted by s 160 only for the purpose of removing "an ambiguity or uncertainty".[1] The existence of an ambiguity or uncertainty is a necessary statutory prerequisite to any variation being made.[2] If there is such an ambiguity or uncertainty, the Commission has a discretionary power vested by s 160 which it may exercise to remove the ambiguity or uncertainty.[3]

• [11] Ambiguity exists when a provision in an award is capable of more than one meaning.[4] The ambiguity may be apparent on the face of the award or may become apparent only when extrinsic evidence is adduced.[5]

• [12] The terms "ambiguity" and "uncertainty" are not synonyms.[6] The ordinary meaning of "ambiguity" is "1. doubtfulness or uncertainty of meaning, 2. an equivocal or ambiguous word or expression". The ordinary meaning of "uncertainty" is "1. not definitely or surely known; doubtful. 2. not confident, assured or decided. 3. not fixed or determined. 4. doubtful; vague; distinct".[7] Uncertainty may arise from the application of an unambiguous term to a particular set of circumstances. The distinction between patent ambiguity (linguistic ambiguity) and latent ambiguity (ambiguity in application) provides an illustration by analogy.[8]

• [13] Determining whether a provision in an award is ambiguous or uncertain is distinct from the task of identifying the true meaning of the provision.[9] When an instrument such as an award is properly construed, there is only one correct meaning, notwithstanding that there may be ambiguity in the provision.[10] It follows that it is not necessary for the Commission to interpret the award in order to reach a conclusion concerning the presence of ambiguity or uncertainty.[11]

• [14] If ambiguity or uncertainty is found in an award, the Commission may have regard to a range of factors in determining whether to exercise its discretion to vary the award in order to remove the ambiguity or uncertainty. There is no need for the Commission to feel constrained in the matters to which it may have regard in the exercise of its discretionary power under s 160 of the Act by the principles developed for the interpretation of awards.[12] For example, the Commission may have regard to "industrial principles and general industrial merit considerations".[13] Other relevant matters may include the actual intention of the maker of the instrument (or of the interested parties) and the history of the provision as part of the "equity, good conscience and the merits" of the matter.[14] This may be contrasted with the process of construing an award where the actual subjective intent of the makers of the instrument is irrelevant. That is because the process of interpretation is directed to the proper construction of what the instrument says, not what it was meant to say.[15]

• [15] The decision of the High Court in Re Brack; Ex parte Operative Painters and Decorators of Australia[16] is a good example of the application of the principles to which I have referred in the previous paragraph. In Re Brack, Justice Morling of the Federal Court of Australia made a declaration as to the proper construction of clause 10 of the Hydro-Electric Commission of Tasmania Carpenters and Painters Award 1979 (Hydro Award). Morling J declared that on the true construction of clause 10 of the Hydro Award the respondent was bound to pay an industry allowance to all painters employed under the Hydro Award, whether engaged on construction work or not. The respondent then applied to the Conciliation and Arbitration Commission to have clause 10 of the Hydro Award varied such that painters who were not engaged in construction work would not be entitled to the allowance. Commissioner Brack varied the Hydro Award in the terms sought with effect from the commencement of the Hydro Award. In making that determination Commissioner Brack had regard to the actual intention of the parties at the time the Hydro Award was made, as distinct from the expressed intention determined by Justice Morling.[17]

• [16] Toll submits that clause 22.10 of the RTD Award is ambiguous. The ambiguity is created, so Toll contends, by the word "which" and its lack of any specific and express connection to either the individual shiftworker's shifts, or the shift arrangement of the employer's operation.

• [17] Whilst ultimately Toll contends that its construction of clause 22.10 of the RTD Award is to be strongly preferred, a finding of ambiguity is available and should be made.

• [18] Toll submits that a variation to remove an ambiguity or uncertainty in a modern award should have regard to the intention of the author(s) at the time the award was made, or in other words, the "substantive [award] that was ambiguously or uncertainly reduced to writing".[18] Whilst this may not be the only relevant consideration to the exercise of the discretion (both as to whether to vary and if so, how), having ascertained that intention, Toll submits that "it would be unusual for other considerations to weigh in favour of a variation that was inconsistent with the intention of the [author]".[19] Here, that is the Commission through the award modernisation process.[20]

• [19] Toll contends that the industrial history and surrounding modernisation context referable to the RTD Award provide strong evidence of a meaning and intention of clause 22.10 of the RTD Award which reflects the Short Shift View.

• [20] Toll submits that as with many (if not most) modern awards, the RTD Award involved the consolidation and modernisation of a series of pre-reform State and Federal awards. And as with many (if not most) pre-reform awards (at least those at Federal level), many of the operative clauses ultimately derive from, at least in part, the Metal Trades Award.

• [21] It is contended that the RTD Award is no different:

• (a) the RTD Award was a consolidation of a large number of prior federal and state awards, 22 about 14 of which included a clause with similar drafting to clause 22.10 of the RTD Award;[21]

(b) the RTD Award was published as an exposure draft, and ultimately made by the Commission, as one of three cognate awards dealing with the private transport industry: the RTD Award, the Road Transport (Long Distance Operations) Award 2010 and the Transport Industry (Cash in Transit) Award 2010 (CIT Award), the latter of which (when made) contained a clause effectively identical to what was then clause 24.10 of the RTD Award;

• (c) the shiftwork clause in the RTD Award (then clause 24) was intended to reflect the corresponding clause in the Transport Workers Award 1998 (TW Award),[22] and what is now clause 22.10 of the RTD Award was, when made, effectively identical to the corresponding clause in that award (clause 34.11 of the TW Award); and

• (d) the genesis of that clause in the transport industry was clause 5(b) of the Transport Workers (Shift Work) Agreement 1962 (TW Shift Work Agreement),[23] which in turn was substantially similar to clause 12(g) of the Metal Trades Award 1952.[24]

• [22] Toll submits that various of either the Metal Trades Award antecedents, or the awards which were consolidated into the RTD Award, whilst utilising the same overall structure and critical language as clause 22.10 of the RTD Award, had additional nuances in language which made it pellucid that the required "continuity" attached to the shift arrangement within the employer (Short Shift View), rather than the shifts actually worked by the employee (Individual View).[25] Indeed, it is submitted that some of them contained separate penalties for employees who worked non-rotating night shifts. If the Individual View applied, employees could be entitled to a penalty for working all night shifts in a roster pattern, and a different penalty for not working all night shifts in a roster pattern.

• [23] Moreover, Toll contends that the origin clause (and many of its successors), plus many of those consolidated into the RTD Award, was part of the suite of clauses for employer operations with non-continuous work, as the alternative to employer operations with continuous work. The definitions of continuous work are also clearly referring, so Toll submits, to continuous shift operations/arrangements of the employer, thereby making the non- continuous work provisions equally referable to shift operations/arrangements.

• [24] Clause 12(g) of the Metal Trades Award 1952 was the subject of comment in the 1969 Shift Work Case,[26] in a manner which Toll contends also made it clear that the Commission at that time regarded the clause as reflecting the Short Shift View. Indeed, as was remarked by Munro J of this passage from the Shift Work Case in Harris Daishowa (Australia) Pty Ltd v CFMEU:[27]

"I note that that discussion is cast entirely in terms of the continuity test applying to the duration of the shift, not to the individual employee's performance of duty."

• [25] Toll contends that the industrial history strongly supports (or is "overwhelmingly consistent with")[28] these clauses, repeated throughout award after award, intending to give effect to the Short Shift View as recompense to employees for the introduction of emergency or special shifts in the operations of the employer (usually) to boost productivity.33 Given that the Commission intended to replicate clause 34.11 of the TW Award (which was itself a direct product of this history) in what is now clause 22.10 of the RTD Award, Toll submits that the Commission intended clause 22.10 to mean the Short Shift View.

• [26] Toll contends that this is reinforced by the Commission's dealings with the corresponding clause in the CIT Award. The CIT Award was modernised at the same time as the RTD Award and it contained a substantively identical clause to clause 22.10 of the RTD Award (as clause 25.9(c)).

• [27] As part of the four yearly review of the CIT Award, on 18 December 2014 the Commission published an exposure draft which removed clause 25.9(c) of the CIT Award, and inserted (instead) a replacement provision in the shift penalties table in clause 14.8 (what was clause 25.8 and is now clause 21.8), which expressed the penalty entitlement as follows: "Afternoon shift (where continues for fewer than five consecutive afternoons" and "Night shift (where continues for fewer than five consecutive nights".

• [28] The Ai Group took issue with that language, submitting that whilst clause 25.9(c) of the CIT Award "[made] clear" that it was implementing the Short Shift View, the wording of the exposure draft did not. To avoid ambiguity (and evidently, to retain the Short Shift View meaning), an amendment was proposed to each of the phrases above as follows: "Afternoon shift (where the shift continues for fewer than five consecutive afternoons" and "Night shift (where the shift continues for fewer than five consecutive nights".

• [29] Of this, the Commission said as follows:[29]

"No party opposed the proposed amendment. We agree with Ai Group and will amend the draft variation determination accordingly." [Emphasis added]

• [30] These additional words ("the shift") now appear in clause 21.8 of the current version of CIT Award. It is incongruous, so Toll submits, that the Commission could make these two cognate awards as part of the same modernisation process, place what was effectively an identical clause in each of them, yet take a different view as to what was to be meant by each of them. Toll submits that it would be equally incongruous for the Commission to agree to amend the language of one (the CIT Award) to avoid ambiguity, so as to reflect the Short Shift View, but not take the same approach to the other (the RTD Award).

• [31] As to the language of clause 22, Toll submits that the Short Shift View is more correct as a matter of grammar, the word "which" usually referring to groups or things, rather than persons (which is usually "who" or "whom").[30] It is submitted that the word "which" is used in clause 22.10 as a defining clause for what immediately precedes it (a "shift"), through the use of what comes after it ("does not continue...").[31]

• [32] As to the industrial context in which clause 22.10 of the RTD Award must be understood, Toll submits that context may appear from the text of the instrument and its arrangement, but also extends to "the entire document of which it is a part or to other documents with which there is an association".[32]

• [33] As to the purpose of clause 22.10 of the RT Award, Toll submits that the TWU submissions fall into the common mistake of assuming a desirable outcome or operation of the disputed provision and then asserting its purpose accordingly.[33] Toll contends that there is a line of industrial jurisprudence which identifies what a short shift is and what it compensates for. Toll submits that this is not the purpose for which the TWU contends.

• [34] Finally, Toll submits that the Individual View would have drastic ramifications for employer operations under the RTD Award utilising 12 hour shifts, which would be many. It is submitted that such employers would have to roster shiftworkers for 60 hours over five consecutive days (5 x 12 hour shifts), in order to avoid paying cost prohibitive penalties for what would be otherwise regarded as ordinary hours (averaged according to clause 22.2 of the RTD Award). Toll submits that the Individual View makes 12 hour shifts within the coverage of the RTD Award uneconomic.

• [35] Toll submits that its proposed variation accords with the Commission's evident intention when making the RTD Award, sits more comfortably with the ordinary meaning of the language used, is consistent with the industrial history of the clause and also like clauses in pre-modern awards which were consolidated into the RTD Award.

• [36] Toll seeks that any variation according with the Short Shift View commence operation on and from 1 January 2010, when the RTD Award first commenced operation.

• [37] Unlike the default or usual position for variations to remove ambiguities from enterprise agreements (which is to give them effect from when the agreement commenced operation), Toll accepts that section 165(2)(b) of the Act requires "exceptional circumstances" to be shown before a variation to a modern award to remove ambiguity is given retrospective effect.

• [38] Toll submits that there are exceptional circumstances in this case for the following reasons:

(a) a retrospective variation reflects the proper intent of the Commission in making the RTD Award, from when it first commenced operation;

(b) not only is there likely disputation and litigation in the industry covered by the RTD Award more broadly, there is actual disputation between the TWU and Toll in relation to Toll's Tomago operations, the outcome of which would apply equally to all of its other operations with shift rosters of this kind. A retrospective variation will quell present, and avoid future, disputation;

(c) a failure to give retrospective effect to any variation gives rise to the prospect of inconsistency, in that the RTD Award may be varied prospectively to accord with the Short Shift View, yet may then be interpreted in the TWU's dispute application (or some other dispute) as consistent with the Individual View;

(d) the cost implications for Toll alone are significant, not to mention the prospect of similar cost implications (and back-pay) for many other employers in the industry who, it can be inferred, operate on roster arrangements which would attract the penalties on the Individual View; and

(e) given that Toll has been paying its employees consistently with the Short Shift View, a retrospective variation will not have any effect on employee entitlements already received.

• [39] As such, Toll submits that it is appropriate that the variation take effect from the date that the RTD Award first commenced operation: namely, 1 January 2010.

• [40] Ai Group submits that the clause in question has a long industrial history that aligns with the interpretation reflected in Toll's proposed variation; the proposed variation also aligns with the industry practice.

• [41] AiGroup contends that if the TWU's opportunistic pursuit of an alternative interpretation prevails, there would be widespread adverse consequences for a very large number of businesses in the transport industry and other industries.

• [42] Ai Group submits that both the Individual View and the Short Shift View are arguable interpretations of clause 22.10 of the RTD Award.

• [43] It is submitted that the Short Shift View aligns with:
  • the intended meaning of the clause, as clarified during the award modernisation process;
  • the industrial history of the clause in transport industry awards;
  • the industrial history of a similar clause in the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award);
  • the decision of Justice Munro of the Australian Industrial Relations Commission (AIRC) in Harris Daishowa;
  • the shiftwork scheme in the RTD Award;
  • widespread industry practice;
  • the interpretation that has been adopted by the Fair Work Ombudsman;
  • relevant award interpretation authorities and the text of the clause; and
  • the interests of equity and fairness.

• [44] Ai Group supports Toll's proposed variation but is of the view that the addition of the following example under the clause would further assist in ensuring that the clause is "simple" and "easy to understand", consistent with ss 134(1)(g) and 138 of the Act:

ABC Transport operates on an ongoing basis with day work and a permanent afternoon shift. The afternoon shifts run for 7.6 ordinary hours per shift, Monday to Friday. Amal is transferred from day work to the afternoon shift for a three-day period. The penalty in clause 22.10 does not apply because the afternoon shift continues from week to week. However, if Amal did not receive 48 hours' notice of the requirement to work an afternoon shift, the penalty in clause 22.5 would apply for that shift because it is not a 'rostered shift' (as defined in clause 22.1(d))."

• [45] Ai Group notes that on 16 September 2022, a Full Bench of the Commission issued a Statement[34] about the remaining plain language matters in the 4 Yearly Review of Modern Awards. In conjunction with the Statement, the Commission published the Wallis Report - Modern User Experience Research Report. This report stated that:

"In general, respondents appreciated the use of examples. These individuals reported that examples made it easier to understand the clause and it helped them relate to the information:

...

There was concern amongst some participants that the addition of examples makes the award longer and was not necessary for simple clauses and concepts:

...

Based on feedback from participants, there is a place for examples in the revised award. Many participants welcomed the use of examples. They reported that examples solidified their thinking and helped people understand concepts. Other participants were concerned that examples could 'clutter' the award document and suggested that it might be better to make examples hidden in some way or be used only for complex concepts."

• [46] With regard to the Wallis Report, the Full Bench made the following relevant comment in its Statement of 16 September 2022:

"[29] The key findings from the Wallis Report are set out below:

• Examples were generally positively received for their explanatory utility. Recommendations are made on how they should be displayed in order not to harm document flow or add too much to document length."

• [47] Given that clause 22.10 in the RTD Award contains some complexity, even with the proposed variation, Ai Group submits that this is an ideal clause for an example to be included in the RTD Award, consistent with the Wallis Report. It is submitted that expanded text could potentially be used for the example, consistent with the suggestions in the Wallis Report.

• [48] Ai Group submits that the RTD Award was made during the award modernisation process conducted by the AIRC pursuant to Part 10A of the Workplace Relations Act 1996 (Cth). It contends that the terms of the RTD Award were primarily based on the TW Award.

• [49] When an exposure draft of the RTD Award was published in January 2009, the AIRC Full Bench stated:[35]

"[97] We have decided to publish three exposure drafts. They are the Road Transport and Distribution Award 2010 (RT&D Modern Award), the Road Transport (Long Distance Operations) Award 2010 (RT Long Distance Modern Award) and the Transport Industry (Cash in Transit) Award 2010 (CIT Modern Award). Each draft is of an industry award with the coverage described by reference to the industry of the relevant employers.

[98] The RT&D Modern Award covers the road transport and distribution industry as defined in the exposure draft. The definition is broad and is intended to incorporate the scope of the pre-reform Transport Workers Award 1998 (Transport Workers Award) and NAPSAs operating in each state as the general industry transport award. It also incorporates the transport activities previously covered by freight forwarding, petrol and petroleum products, crude oil and gas and quarried materials awards. These are a subset only of the sectors covered by the exposure draft and the parties should give close consideration to the definition of the industry." [Emphasis added]

• [50] When it made the RTD Award in April 2009, the AIRC Full Bench stated that it had amended the shiftwork clause (that was in the exposure draft) to reflect the shiftwork provisions in the TW Award:[36]

"[179] We have amended the shiftwork clause to reflect the provisions of the corresponding clause in the TW Award 1998. We have also made a number of changes to the work on public holidays clause to reflect the penalty rates in a large number of pre-reform transport awards."

• [51] The relevant clause in the TW Award was in the following terms:

"34.11 Shift workers who work on any afternoon or night shift which does not continue for at least five consecutive afternoons or nights shall be paid at the rate of time and a half for the first three hours and double time thereafter for each such shift."

• [52] The relevant clause in the RTD Award, as at 1 January 2010 when the award initially came into operation, was not materially different:

"24.10 Rate for non continuous afternoon or night shift

Shiftworkers who work on any afternoon or night shift which does not continue for at least five consecutive afternoons or nights must be paid at the rate of time and a half for the first three hours and double time thereafter for each shift."

• [53] Ai Group submits that the short shift clause in the RTD Award was amended in 2020 as a result of the Commission's 4 Yearly Review of Modern Awards to clarify the penalties and the rate upon which the penalties are to be calculated, consistent with the approach that the Commission has adopted in numerous modern awards. Instead of "time and one half" and "double time", the current clause refers to 150% and 200% of the ordinary hourly rate.

• [54] During the 4 Yearly Review, Ai Group submits that there was a development relating to the CIT Award that is relevant to the current proceedings. The 2010 version of the CIT Award included the following clause:

"25.9 Work on Saturday, Sunday or public holidays

a) Shiftworkers will be paid the following rates for work on a rostered shift the major portion of which is performed on a Saturday, Sunday or public holiday:

b) The penalty rates prescribed by this clause for work on a Saturday, Sunday or public holiday are payable instead of the shift allowance prescribed in clause 25.8.

1. Shiftworkers who work on an afternoon or night shift which does not continue for at least five consecutive afternoons or nights will be paid at the rate of time and a half for the first three hours and double time after that for each shift." [Emphasis added]

• [55] Between December 2014 and December 2019, the wording of the provision in the exposure draft that would replace clause 25.9(c) in the 2010 version of the CIT Award remained unresolved. A Full Bench of the Commission resolved the issue in a decision of 24 December 2019,[37] in accordance with submissions made by the Ai Group.

• [56] Ai Group submits that the Full Bench inserted wording that left no doubt that the Short Shift View applied in relation to the relevant entitlement, as submitted by Ai Group. The TWU did not oppose Ai Group's proposed amendment.

• [57] Given that clause 24.10 in the 2010 version of the RTD Award and clause 25.9(c) in the CIT Award contain very similar wording, Ai Group submits there is nothing to suggest that the same interpretation would not apply to both clauses (i.e. the Short Shift View). The two clauses are reproduced below with the differences marked. It can be seen that the differences are very slight and immaterial:

"Clause 24.10 in the 2010 version of the RTD Award:

24.10 Rate for non continuous afternoon or night shift

Shiftworkers who work on any afternoon or night shift which does not continue for at least five consecutive afternoons or nights must be paid at the rate of time and a half for the first three hours and double time thereafter for each shift.

Clause 25.9(c) in the 2010 version of the CIT Award:

(c) Shiftworkers who work on an afternoon or night shift which does not continue for at least five consecutive afternoons or nights will be paid at the rate of time and a half for the first three hours and double time after that for each shift."

• [58] Ai Group submits that clause 22.10 of the RTD Award can be traced back to the TW Shift Work Agreement - a registered agreement reached between the TWU and various companies to engage employees on shift work. The TW Shift Work Agreement operated for many years from 3 December 1962.

• [59] At the time, an employer covered by the TW Award could only implement shift work arrangements through a variation to the TW Shift Work Agreement to include the employer as an additional party to the TW Shift Work Agreement. At the time, the TW Award did not include shift work provisions.

• [60] Similar to earlier versions of the award, the Transport Workers Award 1972 did not include shift work provisions.

• [61] Between 1962 and February 1977, clause 5(b) of the TW Shift Work Agreement stated:

"(b) Shift workers who work on any afternoon or night shift which does not continue for at least five consecutive afternoons or nights shall be paid at the rate of time and a half."

• [62] Ai Group submits that this clause was very similar to the following provision that was included in clause 12(g) of the Metal Trades Award 1952 at that time:

"Shift workers who work on any afternoon or night shift which does not continue for at least five successive afternoons or nights in a five day workshop or for at least six successive afternoons or nights in a six day workshop shall be paid at the rate of time and a half."

• [63] Ai Group submits that in those days it was very common for provisions in the Metal Trades Award to flow into other awards.

• [64] The Metal Trades Award 1952 was varied in 1969 to increase the penalty in the short shift clause to time and a half for the first four hours and double time thereafter. In the Metal Industry Award 1971_,_ the penalty in the clause was further varied to time and a half for the first three hours and double time thereafter.

• [65] The relevant provision in the TW Shift Work Agreement was varied a few years later, in February 1977, to align with the higher penalty that had been included in the Metal Trades Award from 1971:

"(b) Shift workers who work on any afternoon or night shift which does not continue for at least five consecutive afternoons or nights shall be paid at the rate of time and a half for the first three hours and double time thereafter for each such shift."

• [66] In 1998, Ai Group submits that an identical clause to that which was included in the TW Shift Work Agreement was inserted into the TW Award; by this stage, shift provisions had been included in the TW Award:

"34.11 Shift workers who work on any afternoon or night shift which does not continue for at least five consecutive afternoons or nights shall be paid at the rate of time and a half for the first three hours and double time thereafter for each such shift."

• [67] Ai Group submits that a search of relevant authorities has not uncovered any decisions of the Commission or its predecessors, or of any court, relating to contested interpretations of the short shift clause in the Transport Workers Award or the RTD Award.

• [68] It is contended that the history of the short shift clauses in the transport and manufacturing industries demonstrates that there are strong reasons why the same interpretation should apply to the relevant provision in the RTD Award and the Manufacturing Award.

• [69] Ai Group submits that the short shift clause in the Manufacturing Award can be traced back to at least 1930 when Beeby J of the Commonwealth Court of Conciliation and Arbitration made a new award covering the metal trades industry.[38] Clause 6(e) in this award provided separate loadings applicable to shiftwork undertaken in 'other than continuous processes' as follows:

...

Shift Work in other than Continuous Processes.

(e) In establishments not coming within the definition of continuous processes, any afternoon or night shift which does not continue for more than five successive nights in a five-day workshop, or six successive nights in a six-day workshop, shall be paid for at overtime rates.

For any afternoon or night shift which has been in operation for more than five nights and less than one month, 10 per cent, more than ordinary rates shall be paid, and after such shifts have continued for more than one month, 5 per cent, more than ordinary rates."

• [70] The penalty rate in the first paragraph of the clause was replaced with a time and a half penalty in a subsequent decision in 1935.[39] The relevant wording in the award at that time was:

"Shift work in other than continuous processes.

(g) In establishments not coming within the definition of continuous processes, any afternoon or night shift which does not continue for 5 successive working nights or more in a 5 day workshop, or 6 successive working nights or more in a 6 day workshop, shall be paid for at the rate of time and a half.

(h) For any afternoon or night shift which has been in operation for 5 nights or more and less than one month 10 per cent, more than ordinary rates shall be paid and after such shifts have continued for more than one month 5 per cent, more than ordinary rates shall be paid."

• [71] The Metal Trades Award 1952 contained the following wording:[40]

(g) Shift workers on continuous work whilst on afternoon or night shifts shall be paid 7 ½ per cent, more than the ordinary rate for such shifts.

Shift workers on other than continuous work whilst on afternoon or night shifts shall be paid 10 per cent, more than the ordinary rates for such shifts.

Shift workers who work on any afternoon or night shift which does not continue for at least five successive afternoons or nights in a five day workshop or for at least six successive afternoons or nights in a six day workshop shall be paid at the rate of time and a half.

An employee who -

(i) during a period of engagement on shift, works night shift only; or

(ii) remains on night shift for a longer period than four consecutive weeks; or

(iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give him at least one-third of his working time off night shift in each shift cycle, shall during such engagement, period or cycle be paid at the rate of time and a quarter for all time worked during ordinary working hours on such night shifts."

• [72] The short shift provision in the above clause in the Metal Trades Award 1952 was considered by the Commonwealth Conciliation and Arbitration Commission in 1969. In its decision, the Full Bench noted that "(s)hort shifts of this nature are not a frequent occurrence":[41]

"2 Rates for shifts which continue for less than five successive afternoons or nights in a five day workshop or less than six successive afternoons or nights in a six day workshop.

The present prescription which provides the rate of time and a half for work on afternoon or night shifts which do not continue for at least five successive afternoons or nights in a five day workshop or six successive afternoons or nights in a six day workshop was awarded in 1935. Previously the award prescribed overtime rates for such shifts. The claim is for double rates. Short shifts of this nature are not a frequent occurrence and indeed no evidence was adduced concerning them. We believe that when they are worked they are usually introduced to cope with some emergency which has occurred and that normally they would be brought about by factors beyond the control of the employer. In the circumstances, we do not consider that the rate should be so high that it would be a complete deterrent in emergency situations. On the other hand, it is understandable that such a shift must cause extreme disruption to the normal routine of the employees concerned and we consider that a reasonably high recompense is justified. Particular reference was not made by the respondents to this part of the claim except to say that the applicant had not made out a case. In our opinion, the rate of double time for all such work is too high and to this extent we would refuse the claim. However, although the material before us is somewhat limited we are of the opinion that, having regard to the disabilities which must be encountered by employees in such circumstances, the existing rate should be increased to some extent.

Accordingly, we fix a premium of 50 per cent extra for the first four hours of each such shift and 100 per cent for the remaining hours thereof." [Emphasis added]

• [73] As a result of the 1969 decision, the Metal Trades Award 1952 was varied to increase the penalty in the clause:[42]

(g) (i) - - -

(ii) A shift worker who works on an afternoon or night shift which does not continue for at least five successive afternoons or nights in a five day workshop or for at least six successive afternoons or nights in a six day workshop shall be paid for each such shift 50 per cent for the

first 4 hours thereof and 100 per cent for the remaining hours thereof in addition to his ordinary rate..." [Emphasis added]

• [74] Ai Group submits that it is clear from the above extracts that the short shift clause was always intended to deal with "shifts" that were introduced for short periods. It is submitted that the clause was never intended to deal with the circumstance of an employee being transferred to an existing shift at short notice.

• [75] The circumstances of an employee being transferred to an existing shift at short notice is dealt with by the concept of a "rostered shift", and the penalty that is payable under the RTD Award where a shift is not a "rostered shift".

• [76] Ai Group contends that none of the later versions of the Metals / Manufacturing Award disturb the intended meaning of the short shift clause.

• [77] The Metal Trades Award 1971 included the following clause 19(g)(ii):

(g) (i) ...

(ii) A shift worker who works on an afternoon or night shift which does not continue for at least five successive afternoons or nights in a five day workshop or for at least six successive afternoons or nights in a six day workshop shall be paid for each such shift 50 per cent for the first three hours thereof and 100 per cent for the remaining hours thereof in addition to his ordinary rate."

• [78] The Metal Industry Award 1984 included the following clause 19(g)(ii). Paragraph 19(ii)(b) was amended from the version in the 1971 Award to reflect the fact that the since the 38-hour week was implemented in 1991, the Award enabled the ordinary working hours to be structured in a wide variety of ways (e.g. in 4 x 9.5 hour days in a week, rather than over 5 days in a week):

"Afternoon or Night Shift Allowances

(g) (i) ...

(ii) A shift worker who works on an afternoon or night shift which does not continue:

(a) for at least 5 successive afternoons or nights in a 5 day workshop or 6 successive afternoons or nights in a 6 day workshop; or

(b) for at least the number of ordinary hours prescribed by one of the alternative arrangements in subclauses (b) or (c) hereof

shall be paid for each such shift 50 per cent for the first three hours thereof and 100 per cent for the remaining hours thereof in addition to his ordinary rate."

• [79] The Metal Engineering and Associated Industries Award 1998 (Metals Award 1998) included the following clause 6.2.2(b):

"6.2.2(b) An employee who works on an afternoon or night shift which does not continue:

(i) for at least five successive afternoon or night shifts or six successive afternoon or night shifts in a six day workshop (where no more than eight ordinary hours are worked on each shift); or

(ii) for at least 38 ordinary hours (where more than eight ordinary hours are worked on each shift and the shift arrangement is in accordance with subclauses 6.1.2 or 6.1.3);

shall be paid for each shift 50 percent for the first three hours and 100 percent for the remaining hours, in addition to his or her ordinary rate."

• [80] During the award modernisation proceedings, Ai Group and the union parties to the Metals Award 1998 jointly filed a draft award with the AIRC on 1 August 2008. The draft award included those provisions which had been agreed upon between Ai Group and the union parties, and also included the competing versions of other provisions which were in contention. The short shift provision was in proposed clause 5.3.2(b) of the draft award and was agreed between the parties. It provided:

"5.3.2(b) An employee who works on an afternoon or night shift which does not continue:

(i) for at least five successive afternoon or night shifts or six successive afternoon or night shifts in a six day workshop (where no more than eight ordinary hours are worked on each shift); or

(ii) for at least 38 ordinary hours (where more than eight ordinary hours are worked on each shift and the shift arrangement is in accordance with subclauses 5.2.2 or 5.2.3);

shall be paid for each shift 50 percent for the first three hours and 100 percent for the remaining hours, in addition to his or her ordinary rate."

• [81] Clause 37.3 of the first exposure draft of the Manufacturing Award included the short shift provision in clause 37.3(b) in almost identical terms to the clause in the joint draft award submitted by Ai Group and the unions:

"(b) An employee who works on an afternoon or night shift which does not continue:

(i) for at least five successive afternoon or night shifts or six successive afternoon or night shifts in a six day workshop (where no more than eight ordinary hours are worked on each shift); or

(ii) for at least 38 ordinary hours (where more than eight ordinary hours are worked on each shift and the shift arrangement is in accordance with clauses 36.3 or 36.4),

must be paid for each shift 50% extra for the first three hours and 100% extra for the remaining hours."

• [82] A Statement was issued by the Full Bench of the AIRC when the first exposure draft of the Manufacturing Award was published, which stated that the exposure draft substantially reflected the draft award prepared by Ai Group and the union parties to the Metals Award 1998.[43] The relevant provision was not materially altered in subsequent stages of the award modernisation proceedings and remained in the Manufacturing Award 2010 as clause 38.3(b).

• [83] Similar to developments with the RTD Award and many other awards, the relevant clause in the Manufacturing Award was amended in 2020, during the 4 Yearly Review of Modern Awards, to clarify the penalties and the rate upon which the penalties are to be calculated. The clause in the 2020 version of the Award provides:

"(e) Afternoon and night shift - non-successive shifts

An employee who works on an afternoon or night shift which does not continue:

(i) for at least 5 successive afternoon or night shifts or 6 successive afternoon or night shifts in a 6 day workshop (where no more than 8 ordinary hours are worked on each shift); or

(ii) for at least 38 ordinary hours (where more than 8 ordinary hours are worked on each shift and the shift arrangement is in accordance with clauses 17.3 or 17.4),

must be paid for each shift 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary hourly rate for the remaining hours."

• [84] Ai Group contends that the history of the short shift clause strongly supports the Short Shift View, and gives no support to the TWU's Individual View.

• [85] Ai Group submits that under the RTD Award and the Manufacturing Award, the provisions that address the circumstance of an employee being transferred to an existing shift at short notice are the "rostered shift" provisions. The short shift clause has no application in these circumstances.

• [86] In the transport industry, similar to the short shift clause, Ai Group submits that the "rostered shift" concept can be traced back to the 1962 TW Shift Work Agreement. In the Manufacturing Industry, the 'rostered shift' provisions can be traced back to the 1941 version of the Metal Trades Award.[44]

• [87] The following provisions were included within the original 1962 version of the TW Shift Work Agreement:

"Rostered shift" means a shift of which the employee concerned has had at least 48 hours notice.

- - -

For all time worked outside or in excess of the ordinary shift hours or on a shift other than rostered shift, shift workers shall be paid at time and a half for the first four hours and double time thereafter..."

• [88] The 1941 version of the Metal Trades Award included the following provisions:

"Rostered shift" means a shift of which the employee concerned has had at least 48 hours' notice.

- - -

(h) Shift workers for all time worked in excess of or outside the ordinary working hours prescribed by this award or on a shift other than a rostered shift, shall -

(i) if employed on continuous work be paid at the rate of double time; or

(ii) if employed on other shift work at the rate of time and a half for the first four hours and double time thereafter...."

• [89] The relevant provisions in the current awards are as follows:

- - -

(d) Rostered shift means a shift for which the employee concerned has received at least 48 hours' notice.

- - -

For all time worked:

(a) outside or in excess of the ordinary shift hours; or

(b) on a shift other than a rostered shift,

shiftworkers will be paid at 150% of the ordinary hourly rate for the first 2 hours and 200% after 2 hours.

- - -

(b) Definitions

- - -

(iv) Rostered shift means any shift of which the employee concerned has had at least 48 hours' notice

- - -

(g) Work on shifts other than rostered shifts

Where an employee works on a shift other than a rostered shift, the employee must:

(i) if employed on continuous work, be paid at 200% of the ordinary hourly rate; or

(ii) if employed on other shiftwork, be paid at 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary hourly rate thereafter.

• [90] Ai Group contends that it can be seen that throughout the various predecessor awards, and in the current RTD Award and Manufacturing Award, the concept of a "rostered shift" deals with the circumstance where an employee is transferred to an existing shift at short notice, not the short shift clause.

• [91] It is submitted that if an employee is transferred to a shift without 48 hours' notice, there is some potential inconvenience to the employee (even though they are aware that the shift is in operation in the workplace, and they could be required to work on the shift). This inconvenience is dealt with by the penalty in clause 22.5 of the RTD Award.

• [92] If an employee is required to work on a "short shift", Ai Group contends that the circumstances are different because the shift has not been operating in the workplace and the employee would not typically be aware of the shift until it is scheduled. As commented upon by the Full Bench in the 1969 Metal Trades Award decision:[45]

"Short shifts of this nature are not a frequent occurrence and indeed no evidence was adduced concerning them. We believe that when they are worked they are usually introduced to cope with some emergency which has occurred and that normally they would be brought about by factors beyond the control of the employer. In the circumstances, we do not consider that the rate should be so high that it would be a complete deterrent in emergency situations. On the other hand, it is understandable that such a shift must cause extreme disruption to the normal routine of the employees concerned and we consider that a reasonably high recompense is justified."

• [93] Over the years, Ai Group submits the penalty for an employee working on a shift that is not a "roster shift" and the short shift penalty have been aligned at 150% for the first three hours and 200% thereafter, but this does not alter the fact that the penalties provide compensation for different circumstances.

• [94] Ai Group contends that Justice Munro's decision in Harris Daishowa is highly relevant to the current proceedings. That case concerned the following provision in a certified agreement:

"an employee who works an afternoon or night shift which does not continue for at least five afternoons or nights in a five day workshop shall be paid for each shift 50% for the first two hours thereof and 100% for the remaining hours thereof in addition to the ordinary rate."

• [95] In his decision, Munro J considered the question of whether the continuity test should be applied to the shifts, or to the employees working on the shifts. Munro J recognised that the words in the certified agreement had a long industrial history in the metal industry and referred to Beeby J's 1930 decision in relation to the Metal Trades Award. Noting the similarity of the provision in the certified agreement to that in the Metals Award 1998, Munro J determined that the Metal Trades Award authorities are "overwhelmingly consistent with construction of the continuity test to make it applicable to the duration of the shift itself". Munro J said that the "words should be read as indicating that it is the shift that is the dynamic of the entitlement, not the configuration of the individual employee's work on particular shifts". His Honour considered that construction to be "consistent with industrial usage, and with the Company's practice":

"[20] For purposes of this determination, it is sufficient to refer to two of the antecedent provisions. Beeby J inserted in the award he made for the metal trades group of industries in 1930 a provision for shift work. It distinguished between work in "establishments carrying on continuous processes" and "Shift Work in other than Continuous Processes". The provision made as to the latter read:

(e) In establishments not coming within the definition of continuous processes, any afternoon or night shift which does not continue for more than five successive nights in a five-day workshop, or six successive nights in a six-day workshop, shall be paid for at overtime rates.

For any afternoon or night shift which has been in operation for more than five nights and less than one month, 10 per cent, more than ordinary rates shall be paid, and after such shifts have continued for more than one month, 5 per cent, more than ordinary rates.

(f) Shift workers shall be paid overtime at the rate of time and a half for the first four hours, and double time thereafter, for all time worked in excess of shift hours." [Emphasis supplied.]

[21] I note the similarity between the words emphasised and part of the formula in paragraph 26(j)(xi) of the Agreement. Moreover, I note that in the context, the provision for payment for shift work on a non-continuous process applies the continuity test to the duration of the shift, not to the employee's individual performance of duty.

[22] The corresponding, albeit differently, provision of the Metal Trades Award as at 1969 was considered in the 1969 Shift Work Case for variation of the award. Williams J, Taylor SC and Winter C concluded as follows:

"2 Rates for shifts which continue for less than five successive afternoons or nights in a five day workshop or less than six successive afternoons or nights in a six day workshop.

The present prescription which provides the rate of time and a half for work on afternoon or night shifts which do not continue for at least five successive afternoons or nights in a five day workshop or six successive afternoons or nights in a six day workshop was awarded in 1935.

Previously the award prescribed overtime rates for such shifts. The claim is for double rates. Short shifts of this nature are not a frequent occurrence and indeed no evidence was adduced concerning them. We believe that when they are worked they are usually introduced to cope with some emergency which has occurred and that normally they would be brought about by factors beyond the control of the employer. In the circumstances, we do not consider that the rate should be so high that it would be a complete deterrent in emergency situation. On the other hand, it is understandable that such a shift must cause extreme disruption to the normal routine of the employees concerned and we consider that a reasonably high recompense is justified. Particular reference was not made by the respondents to this part of the claim except to say that the applicant had not made out a case. In our opinion, the rate of double time for all such work is too high and to this extent we would refuse the claim. However, although the material before us is somewhat limited we are of the opinion that, having regard to the disabilities which must be encountered by employees in such circumstances, the existing rate should be increased to some extent. Accordingly, we fix a premium of 50 per cent extra for the first four hours of each such shift and 100 per cent for the remaining hours therefore."

Again I note that that discussion is cast entirely in terms of the continuity test applying to the duration of the shift, not to the individual employee's performance of duty.

[23] I construe paragraph 26(j)(xi) against that background of usage of provisions that I consider to be antecedents. I consider that the references I have mentioned are overwhelmingly consistent with construction of the continuity test to make it applicable to the duration of the shift itself. That construction is reinforced, but only to a minor extent, by the use in paragraph 26(j)(xi) of the prefatory words: "The ordinary shifts forming part of the Shiploading Roster will attract the Shift premiums as follows;". In my view, those words should be read as indicating that it is the shift that is the dynamic of the entitlement, not the configuration of the individual employee's work on particular shifts. I consider that construction is consistent with industrial usage, and with the Company's practice. Neither should not be displaced by a mere semantic analysis. Nor, in my view, should I displace that construction by the weight I might otherwise attach to merit considerations of the kind advocated by Mr Miller. It is not my function to vary the terms of the Agreement, or to adjust it to remove an alleged anomaly that must be taken to have been in contemplation when the continuity formula was incorporated in the condition."

• [96] Ai Group contends that Justice Munro's decision is directly on point regarding whether the penalties in the "short shift" clause attach to the shift or the individual. Ai Group contends that the penalties attach to the shift; not the individual.

• [97] In Harris Daishowa, Munro J considered the construction reflected in the Short Shift View to be "consistent with industrial usage" in industries covered by awards that contained short shift provisions that were analogous to those in the Metals Award 1998. In considering what the industry practice was at the time, Munro J referred to Ai Group's annotated loose-leaf version of the Metal Award 1998 which was distributed to Ai Group members covered by the award. This publication had an annotation relating to the short shift clause. However, Munro J decided that the issue was complicated by the fact that the penalty for a shift other than a 'rostered shift' was the same as the penalty under the short shift clause:

"[15] To support his contention that the continuity test applied to the duration of the roster, Mr McCarthy relied upon what he submitted was an analogous provision in subparagraph 6.2.2(b) of the Metal, Engineering and Associated Industries Award, 1998 - Part I (the Metal Trades Award). That subparagraph is part of the clause containing special conditions for shift workers. It has recently been revised to meet the requirements of section 89A of the Act. So far as relevant it reads:

"6.2.2(b) An employee who works on an afternoon or night shift which does not continue

(i) for at least five successive afternoons or nights or six successive afternoon or night shifts in a six day workshop (where no more than eight ordinary hours are worked on each shift); or

(ii) for at least 38 ordinary hours (where more than eight ordinary hours are worked on each shift and the shift arrangements is in accordance with subclause 6.1.2 or 6.2.3);

shall be paid for each such shift 50 per cent for the first three hours and 100 per cent for the remaining hours, in addition to his or her ordinary rate."

An annotation to subclause 6.2, apparently issued by the Australian Industry Group (AiG), and cited in an incomplete form by Mr McCarthy, advises AiG members that:

"It is important to consider 6.2.2(a), (b) and (c) to ascertain the relevant rate applicable to a given afternoon or night shift. Afternoon shift workers, in general, receive a 15 per cent loading. Night shift workers, in general, receive either a 15 per cent loading or a 30 percent loading depending upon whether or not the employee's pattern of engagement on night shift meets the criteria set out in 6.2.2(c). For example, an employee who is engaged permanently on night shift is entitled to a 30 percent loading.

The provisions of 6.2.2(b) are intended to compensate employees who work on a shift which continues only for a very short period. This period is usually five days. It is important to note that this provision relates only to a shift which does not continue for a specified period. It does not relate to circumstances where an employee is transferred to an existing shift. Such situations are dealt with through the application of the definition of a "rostered shift" in 6.2.1 and the provisions of 6.1.4(d).

The wording in 6.2.2(b)(ii) is intended to deal with situations where more than eight ordinary hours are worked on each shift. For example, if 9.5 hour shifts are worked the penalty in 6.2.2(b) applies only to shifts which do not continue for four successive afternoons or nights."

[16] Mr McCarthy submitted that I should accept that there is a settled construction of that provision. However, he did not develop reasons for that proposition. The AiG notation quoted by him attracted comment by me and was later supplied in its complete form. It seemed likely to throw some light on the way in which industry practice in the metal industry at least may have developed. However, on closer examination it appears that "rostered shift" is defined in paragraph 6.2.1 to mean any shift of which the employee has had at least 48 hours notice. Subparagraph 6.1.4(d) provides that where an employee works on a shift other than a rostered shift (as defined), he/she shall, if employed on "continuous" (shift work), be paid at the rates of double time; or if employed on other shift work, at the rate of time and one half for the first three hours and double time thereafter. Thus, the exceptions to subparagraph 6.2.2(b) in the Metal Trades Award link a penalty entitlement similar in kind to that prescribed in paragraph 26(j)(xi) of the Agreement to any shifts for which the employee has not been given at least 48 hours notice, and subparagraph 6.2.2(b) provides much the same level of penalty for any non-continuing shift." [Emphasis added]

• [98] Consistent with Ai Group's annotated awards, Ai Group's Workplace Advice Line and workplace advisers advise members that short shift clauses like those in the Manufacturing Award and the RTD Award are correctly interpreted in line with the Short Shift View.

• [99] The following annotation appears in Ai Group's current annotated version of the RTD Award:

• [100] Consistent with Ai Group's (and predecessor organisations') very longstanding interpretation, the Ai Group submits that the Fair Work Ombudsman has adopted the Short Shift View as being the correct interpretation, as can be seen in a relevant knowledge management article on the FWO's website. The article includes the following relevant extracts:

"NON-SUCCESSIVE SHIFTS IN THE MANUFACTURING AWARD

Special pay rates apply to employees performing work on non-successive shifts.

Workplaces as a whole can set a pattern of shifts that can be successive or non- successive. An individual employee's work pattern doesn't impact whether the shifts are successive.

- - -

Dragan is a part time shift worker in a motorcycle manufacturing plant. The plant has an afternoon shift that runs Monday to Friday.

Dragan works Tuesdays and Thursdays. He gets paid the afternoon shift rate for his shifts.

Even though Dragan only works two afternoon shifts each week, the workplace runs the shift five days a week. This means Dragan doesn't work non-successive shifts.

Josie is a full time shift worker in a factory that manufactures medical equipment. The factory has a big order due on Thursday so they decide to run a night shift as well as their usual afternoon shifts on Monday and Tuesday.

Because the workplace only runs the night shift for two days, the night shift is a non-successive shift.

Josie works 5 shifts that week, 2 night shifts and 3 afternoon shifts. She gets paid the non-successive shift rate for each of the night shifts she works. She gets paid the afternoon shift rate for the afternoon shifts that she works."

• [101] It is submitted that the interpretation widely communicated to employers by Ai Group and the FWO are reliable indicators of the industry practice.

• [102] As to the text of clause 22.10, Ai Group submits that the words "Shiftworkers who work on any afternoon or night shift which does not continue...." suggest that the penalties in the clause apply to an afternoon or night shift which does not continue for the specified period, and not to the work patterns of individual employees. The heading of the clause adds further weight to this interpretation: "Rate for non-continuous afternoon or night shift".

• [103] Ai Group contends that the wording in clause 22.10 can be contrasted with that used in other provisions in the shift work clause in the RTD Award, where it is apparent that the payment of the relevant loading follows the work actually undertaken by the employee.

• [104] It is submitted that the shiftwork provisions in the RTD Award are an "interwoven scheme" for the regulation of shiftwork, similar to the conclusion reached by Deputy President Gostencnik in AMWU v Regal Cream Products[46] about the shiftwork provisions in the Manufacturing Award.

• [105] Ai Group submits that some of the loadings and penalties under the shiftwork scheme in the RTD Award relate to the shift structure in the workplace, including:

• the loadings for afternoon and night shift; and
• the short shift penalty.

• [106] Ai Group contends that other penalties relate to the work patterns of individual employees, including:

• the penalty that an employee is entitled to receive if the shift is not a "rostered shift"; and
• the penalty that applies if a day worker is transferred to shiftwork without 48 hours' notice being given.

• [107] These considerations strongly suggest, so Ai Group contends, that the Short Shift View is the correct interpretation of clause 22.10.

• [108] Toll has sought a retrospective operative date of 1 January 2010 (i.e. the date when the RTD Award was made). Ai Group strongly supports this approach. It contends that exceptional circumstances exist in order to justify granting the proposed retrospective operative date.

• [109] Ai Group contends that the circumstances surrounding this matter have some alignment with those considered by a Full Bench of the Commission in relation to an application by Ai Group and the Mitolo Group to vary the Horticulture Award 2010_._[47] The industry practice was for horticulture businesses to apply the Horticulture Award for their storage and packaging activities, as well as for their growing activities. The NUW endeavoured to disturb the industry practice by pursuing claims for such storing and packing work to be covered under the Storage Services Award. The Full Bench accepted the submissions of Ai Group and other employer representatives and varied the Horticulture Award retrospectively to 1 January 2010 to clarify the coverage of the Award, consistent with the industry practice. The Full Bench said:

"[169] As we have made a determination under s.160 of the FW Act to vary the Horticulture Award to remove ambiguity and uncertainty, the criteria in s.165(2)(a) has been met. In order to make a variation to the Horticulture Award retrospectively, we must also be satisfied that there are 'exceptional circumstances' that justify the specification of an earlier day.

[170] For the following reasons, we are satisfied that there are 'exceptional circumstances' that warrant the proposed variation to operate retrospectively from the date of commencement of the Horticulture Award, namely, 1 January 2010:

(a) For the reasons set out above, the Horticulture Award was not intended to be limited to work carried on behind a physical 'farm gate'; and

(b) The evidence demonstrates that many employers in the horticulture industry have been applying the Horticulture Award to work undertaken at washing, grading and packing facilities, regardless of whether any produce is grown at the site on which the facility is located. Absent retrospective operation of the variation, we are satisfied there will inevitably be disputation and likely litigation over whether producers have during the past almost eight years (subject to limitation periods) being making underpayments to workers in their packing facilities. Such disputation, litigation and potential back pay orders has the potential to have a significant impact on the viability and/or sustainability of a number of producers in the horticultural industry."

• [110] Similarly, Ai Group contends that if the TWU's interpretation of the short shift clause prevailed, it is foreseeable that there would be very widespread adverse implications. The associated "disputation, litigation and potential back pay orders has the potential to have a significant impact on the viability and/or sustainability of" a large number of businesses in numerous industries.

• [111] The circumstances also have some similarity to those dealt with by Justice Boulton in respect of a variation proposed by Ai Group to the coverage clause of the Black Coal Mining Industry Award 2010 during the 2 Year Review of Awards. In his Honour's decision, Boulton J stated:[48]

"[12] The Ai Group submit that the amendment to the note in the coverage clause should have a retrospective operative date of 1 January 2010. The Ai Group submit that this would avoid any uncertainty about the coverage of the Award for the period since 1 January 2010, and avoid uncertainty about the coverage of the portable long service leave legislation, which is based upon the coverage of the Award as at 1 January 2010.

...

[18] I am satisfied that there are exceptional circumstances that make it appropriate for the variation to the note at clause 4.3 of the Award to operate retrospectively as sought by the Ai Group."

• [112] Further, the circumstances have some alignment with those dealt with by Vice President Lawler in respect of an application made by Ai Group under ss 157 and 160 to vary the Telecommunications Services Award 2010 to include the National Training Wage Schedule.35 In His Honour's decision, Vice President Lawler stated:

"[4] I accept the submission of Mr Smith for AiG that there are employers in the industry who have engaged trainees in accordance with the provisions of the National Training Wage Award in the period since 1 January 2010 and it is necessary to give the variation a retrospective operation to 1 January 2010 as a reasonable protection for those employers. However, I am concerned that the retrospective variation should not be used as a basis for any employer making a claim for restitution of an overpayment of wages where a 'trainee' was employed in a substantive classification under the Award and received wages and other wage related payments in excess of those due under the National Training Wage schedule in the period between 1 January 2010 and the date the variation determination was made. Such employees should not be obliged to repay wages and other wage related payments solely because the present variation has a retrospective effect (of course, an employer should be free to pursue the recovery of overpayments arising for other reasons). I have included an additional paragraph 14.4(b) designed to achieve that outcome. None of the 'parties' that appeared raised any objection to the wording of clause 14.4(b)." [Emphasis added]

• [113] The following two AIRC cases, in which Ai Group was involved, also highlight relevant circumstances which justified granting retrospective operative dates for award variations in order to preserve existing industry and/or employer practices:

• In Mitsubishi Motors Australia Limited and Others, a Full Bench of the Commission varied several awards for a number of years retrospectively to prevent the AMWU and the CEPU and their members benefitting from a new interpretation of the public holiday provisions of the awards, when a different interpretation had been applied throughout the vehicle industry for many years. The Full Bench said: [Emphasis added]

"[42] We are satisfied that the circumstances of the case are sufficiently rare and singular to justify a conclusion that they are exceptional for purpose of section 146. The main grounds of employers' applications have been made out...The submissions of the AiG point to the desirability of acting to ensure that the scope of the award provision is consistent with the industry standard as it has been understood since at least 1952."

• • In National Engineering Pty Ltd v AMWU,[49] a Full Bench of the AIRC varied the Metal, Engineering and Associated Industries Award 1998, as it related to National Engineering Pty Ltd, 8 years retrospectively to prevent the AMWU and its members pursuing a claim that the company had underpaid shift penalties, when the union and employees had accepted the shift penalty arrangements for the 8-year period. The Full Bench said:

"[75] We are satisfied that equity will be better served by a determination to preserve the arrangement for the period over which it operated than by a determination that would in effect set it aside. If there may be some unfairness in an effective refusal to allow employees to claim their strict Award entitlement, it is offset by our finding that on a balanced view, the arrangement implements, through an agreement of a kind ostensibly enabled by the then award, a flexible work practice proposed by the employees themselves. The workforce was organised. The arrangement was sanctioned by union officials at various stages throughout its term of operation. In the circumstances current award rights should be adjusted to give effect to and ratify the informal but perhaps technically invalid agreement." [Emphasis added]

• [114] Similar to the above matters, Ai Group contends that "equity is better served"[50] in the current proceedings by granting the retrospective operative date that Toll and Ai Group have proposed. It is submitted that the Commission should act "to ensure that the scope of the award provision is consistent with the industry standard".[51]

• [115] Accordingly, Ai Group contends that exceptional circumstances exist justifying an operative date of 1 January 2010 for the variation to the RTD Award.

• [116] ABI submits that clause 22.10 of the RTD Award is suspectable to both the Short Shift View as well as the Individual View. This is because the word "which" could possibly be taken as referring to the shiftwork itself, or the work performed by a particular employee. Both interpretations are available on a plain reading of the text.

• [117] Clause 2 of the Award provides a definition of "Non-continuous afternoon or night". However, this definition merely repeats the wording used in clause 22.10, and thus, so ABI submits, provides no guidance on the current issue.

• [118] ABI is not aware of any court or tribunal decisions that deal with the operation of clause 22.10 of the RTD Award.

• [119] ABI supports the submission that clause 22.10 of the RTD Award is ambiguous for the purposes of section 160 of the Act. ABI contends that such ambiguity is inconsistent with the need to ensure a simple, easy to understand modern award system.

• [120] ABI submits that the intention of clause 22.10 is to give effect to the Short Shift View. ABI opposes any variation to the RTD Award that adopts the Individual View. If the Individual View were to be adopted, ABI submits that this would create an obvious incentive for an employee working an afternoon or night shift to be rostered to work on five consecutive afternoon or night shifts. The option of rostering the employee for anything less than five consecutive shifts would incur a significant penalty. Such an incentive would, so ABI contends, create an unwelcome tension between the terms of the RTD Award and the employer's duty under work health and safety law to manage the risk of fatigue. For example, the Safe Work Australia "Guide for Managing the Risk of Fatigue at Work" sets out the following guidelines for shift design:

"There are many different shift work-schedules and each schedule has different features. The diversity of work and workplaces means there is no single optimal shift system which suits everyone. However, a planned and systematic approach to managing the risks of shift work can improve the health and safety of workers.

The key risk factors which should be considered in shift schedule design are the workload, the work activity, shift timing and duration, direction of rotation and the number and length of breaks during and between shifts. Other features of the workplace such as the physical environment can also contribute to the risks associated with shift work.

• Restrict number of successive night shifts (no more than 3 to 4 if possible).

• Allow for at least 2 full night's sleep after the last night shift.

• Where possible, provide at least 24 hours' notice before night work."

• Use a rapid rotation of shifts (a select number of days) or a slow rotation of shifts (a select number of weeks). A shift design should take into account individual differences and preferences as far as possible. Use forward rotation (morning/afternoon/night)." [Emphasis added]

• [121] Thus, ABI submits that Safe Work Australia encourages employers to consider a range of factors when designing a shift roster, including the nature of the work and the preferences of employees. If the Individual View were to be adopted, ABI contends that these factors may be outweighed, or potentially disregarded, by the cost associated with rostering an employee for fewer than five successive afternoon or night shifts.

• [122] Moreover, ABI submits that the Safe Work Australia Guide expressly encourages employers to restrict the number of successive night shifts to "no more than 3 or 4 if possible". An award provision that adopts the Individual View would create a substantial incentive for employers to disregard this guidance from Safe Work Australia. ABI submits that such an outcome would be especially problematic in the road transport and distribution industry, where fatigue management is a critical safety issue.

• [123] NatRoad supports the variation sought by Toll to clause 22.10 of the RTD Award. NatRoad relies on the submissions and evidence presented by Toll to the Commission.

• [124] The TWU submits that Toll's application should be dismissed. It contends that clause 22.10 of the RTD Award is not relevantly ambiguous or uncertain for the purposes of s 160(1) of the Act and the Commission's jurisdiction under s 160 to remove an ambiguity or uncertainty is not enlivened. In the event that the Commission is satisfied that clause 22.10 is ambiguous or uncertain, the TWU submits that the Commission ought to remove the ambiguity or uncertainty by making clear that clause 22.10 of the RTD Award prescribes penalties for employees who work non-continuous afternoon or night shifts as follows:

"Shiftworkers who work afternoon or night shifts for less than 5 afternoons or nights non- consecutively must be paid at the rate of 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary rate thereafter for each shift."

• [125] In the event that the Commission accedes to Toll's variation application, the TWU submits that the variation should apply from the day it is made. It is contended that neither Toll nor the various employer organisations are able to establish "exceptional circumstances" that justify the Commission specifying an earlier day (let alone an earlier day more than a decade in the past).

• [126] The TWU submits that an assessment of whether clause 22.10 is ambiguous or uncertain requires its text, as well as its context and purpose, to be considered.

• [127] Textually, the TWU submits that a number of matters are apparent from clause 22.10. First, it is submitted that the obligation on an employer to pay the penalty rates prescribed by the clause are triggered by the performance by an employee who is a "shiftworker" of a particular shift. So much is apparent from the opening words of the provision "Shiftworkers who work" and the requirement that they "must be paid" the relevant penalties. "Shiftwork" is defined by clause 22.1(e) to mean work extending for at least 2 weeks and performed either in daily recurrent periods, wholly or partly between 6:30pm or 8:30am or in regular rotating periods. A "shiftworker" is a person who performs such work.

• [128] Second, the TWU submits that shifts to which the penalties may apply are "any afternoon or night shift". "Afternoon shift" and "night shift" are defined by clause 22.1(a) to be, respectively: (a) shifts finishing after 6:30pm but not later than 12:30am; and (b) shifts finishing after 12:30am but not later than 8:30am.

• [129] Third, the TWU contends that the afternoon or night shift to which the obligation will apply has a particular quality, viz., it is one "which does not continue for at least 5 consecutive afternoons or nights". "Which" is used in this phrase, so the TWU submits, as a relative pronoun and refers to the particular afternoon or night shift worked. The employee's shift is one which is non-continuous, in the sense that it is not repeated for five continuous afternoons or nights. In other words, the TWU submits that the shift is one which is not part of a continuous series of shifts worked by the employee which are either afternoon or night shifts and which do not continue over a five-day period.

• [130] It is submitted that the focus of the provision, according to its terms, is on the shift or shifts worked by the employee. It is not on the shift roster or shift arrangement imposed or effected the employer.

• [131] The TWU contends that the title to the provision reinforces what is apparent from its text: the provision imposes a rate for non-continuous afternoon or nights shift work. It makes clear that the purpose of the provision is to prescribe a penalty rate for a particular shift worked by an employee that is "non-continuous" in nature. "Non-continuous afternoon or night" is defined in clause 2 to mean "work on any afternoon or night shift which does not continue for at least 5 consecutive afternoons or nights". This definition is significant, so the TWU contends, as it reinforces that clause 22.10 focuses on the work performed by an employee and whether it continues for the stipulated number of afternoons or nights. It is submitted that the employer's shift arrangements or rosters are not relevant to whether shiftwork is "non- continuous". What is pertinent is the work actually conducted by the employee.

• [132] Contrary to the Ai Group's submissions, the TWU contends that the heading of clause 22.10 when considered in light of the definition of non-continuous afternoon or night work makes clear that the provision is intended to prescribe a penalty rate for employees who work afternoon or night shifts in a "non-continuous" manner.

• [133] The TWU submits that the plain and ordinary meaning of clause 22.10 for which it contends is reinforced when the provision is considered in the context of the provisions of the RTD Award concerning shiftwork. Clause 22.1(e) defines "shiftwork" to be either work that extends for at least 2 weeks and which is performed in daily recurrent periods or in regular rotating periods. It is submitted that shiftwork focuses on the work actually performed by the employee, rather than the arrangements or rosters imposed by an employer in its business. Whether an employee is a shiftworker depends on whether they have, for at least 2 weeks, performed work in daily recurrent periods between 6:30pm and 8:30am or regular rotating periods. In other words, shiftwork may recur over a series of days (for instance it may be continuous over a 3-day period or a 5-day period). Shiftwork may also recur over a series of rotations which are regular in nature. Whether an employee performs shiftwork and is therefore a "shiftworker" depends, so the TWU submits, on what "shifts" they actually work and the pattern of work they in fact engage in.

• [134] Clause 22.2 prescribes that employers are required to have a "shift roster" that provides for rotation unless, as detailed in clause 22.2(b), it is otherwise agreed by the employer and the majority of employees, or as between the employer and the individual employee. Such rosters must, by clause 22.2(c), set out the start and finishing times of particular shifts and cannot be altered unless 48-hours is given. The concept of a "shift roster" is not mentioned in clause 22.10, demonstrating, so the TWU contends, that it is not focused on and does not otherwise deal with an employer's arrangement of shifts in its workplace.

• [135] Clause 22.9 deals with meal breaks and provides that when an employee works on any day, afternoon or night shift, they are entitled to a meal break of 20 minutes. Clause 22.9 is an example of a clause which provides an entitlement premised on the individual employee's performance of a particular shift and it is not dependent on any shift arrangement or roster specified or prescribed by the employer. The TWU submits that it is equivalent to clause 22.10 in this regard.

• [136] It is contended that these matters of internal context underscore that clause 22.10 is focused on the actual shifts worked by an employee and whether they are worked consecutively or non-consecutively.

• [137] The TWU submits that the purpose of a provision of an award or any other instrument must be sourced in its text and deduced from the structure of the instrument, as well as relevant matters of context and extrinsic materials. The TWU submits that Toll's submissions and the submissions made by the employer organisations seek to place exclusive (and in some instances decisive) weight on extrinsic materials which are or little, if any, utility in determining the meaning of clause 22.10 and ascertaining whether it is ambiguous or uncertain.

• [138] It is contended that historical matters are the springboard from which Toll and the employer organisations manufacture the asserted ambiguity or uncertainty in clause 22.10 and by which they seek to have that ambiguity or uncertainty resolved. Significant caution should be attached to those historical matters. As Wheelahan J explained in King:

"... The history of provisions of an industrial instrument may also demonstrate that particular expressions have been the subject of interpretation by the courts or industrial tribunals, which may then be taken to have an accepted meaning when, in the same or a similar context, they find their way into later instruments: Short v FW Hercus Pty Ltd at 517-518."

• [139] The TWU submits that none of the decisions relied on by Toll and the employer organisations concerned clause 22.10 of its antecedents. It is contended that no weight can or should be placed on those decisions.

• [140] Nor can any guidance be gleaned, so the TWU submits, from terms of other modern awards or from awards which were not predecessors to the RTD Award. An ambiguity or uncertainty in one instrument cannot be deduced by comparing or constructing it to another instrument. The ambiguity or uncertainty must be revealed by the instrument under consideration. It cannot, for instance, be said that a provision is ambiguous or uncertain because it is at odds with a provision in another instrument or because a provision of an unrelated instrument was in different terms or was construed in a particular manner.

• [141] The TWU submits that the best guide to the purpose of clause 22.10 and whether it is ambiguous or uncertain are its terms and the place the entitlement to a penalty rate for "non-continuous" shiftwork has in the context of clause 22 of the Award.

• [142] The TWU submits that clause 22.3 sets a penalty rate for ordinary hours which are worked by an employee on afternoon shifts or night shifts. The penalties provided by clause 22.3 are to compensate for the disability inherent in the performance of shift work. An additional loading is prescribed for overtime worked outside of ordinary shift hours or on shifts other than rostered shifts by clause 22.5. A penalty is also imposed where an employer changes an employee's shift without at least 48-hours' notice under clause 22.6. The TWU submits that the purpose of this penalty is to compensate for the inconvenience caused by an employee being required to change shifts at short notice, which would necessarily be disruptive of their personal and private lives. A penalty for performing shiftwork on weekends and public holidays is imposed by clause 22.8. Clause 22.10 imposes penalties whose object, so the TWU submits, is to compensate employees for having to perform shiftwork by working afternoon or night shifts non-continuously.

• [143] A requirement to work non-continuous afternoon or night shifts imposes a practical and substantial burden on employees. Employees who work non-continuous shiftwork work odd and anti-social hours in a disrupted manner. The circumstances of Toll's operations at Tomago are indicative of the disruptions and difficulties faced by employees in being required to work a number of day shifts and then revert to working night shifts, and vice- versa. Where an employee actually works non-consecutive afternoon and night shifts, the TWU submits that the purpose of clause 22.10 is to ensure they are compensated for the disability in working a limited number of afternoon and night shifts non-consecutively.

• [144] The operation of clause 22.10 as contended for by the TWU, which Toll labels the 'Individual View', is, so the TWU submits, entirely congruent with the purpose of clause 22.10.

• [145] It is submitted that the historical matters relied on by Toll and the employer organisations do not assist in ascertaining whether there is ambiguity or uncertainty in clause 22.10.

• [146] The TWU submits that the TW Shiftwork Agreement made in 1962, which contained at clause 5(b) a provision similar to clause 22.10 of the RTD Award, does not assist in the construction of clause 22.10 one way or another. The TWU submits that it is not apparent that the parties sought to emulate the provisions of the clause 12(g) of the Metal Trades Award 1952 or that the construction and application of that clause was on their minds when entering into the TW Shiftwork Agreement. The submission is, so the TWU submits, entirely conjectural and must be rejected. The TWU submits that the balance of the analysis in Toll's submissions proceed from this flaccid premise.

• [147] The TWU submits that a further necessary step in Toll's historical analysis is that the provisions of the Transport Workers Award 1998 stemmed from the TW Shiftwork Agreement_._ Whilst those provisions were in equivalent terms there is, again in the TWU's submission, no evidence that the Commission's predecessor, when it made the Transport Workers Award 1998, intended to reflect the terms of the TW Shiftwork Agreement_._ Nor, significantly, is there any evidence of any determination by the Commission or its predecessors or any other tribunal as to how clause 34.11 of the Transport Workers Award 1998 was to operate.

• [148] The TWU submits that the utility of a historical analysis premised on the terms of the Transport Workers Award 1998 is also limited given material differences between clause 34 of that Award and clause 22 of the RTD Award. First, clause 34 of the Transport Workers Award 1998 had a definition of "continuous work" which is absent from the RTD Award. There was also no definition of "non-continuous" work in relation to afternoon shift and night shift under the Transport Workers Award as there is under the RTD Award_._ Second, clause 34.2 of the Transport Workers Award 1998 defined shift work by reference to ordinary hours of work that were not to exceed eight hours per day each continuously. Finally, and importantly, the TWU submits that there was no discussion in the Full Bench's decision when making the RTD Award that it intended the non-continuous shiftwork provision to operate in a particular manner.

• [149] The TWU submits that the amendments (by consent) to the CIT Award relied on by Toll are of no assistance in determining whether clause 22.10 of the RTD Award is ambiguous or uncertain. The TWU submits that it is impermissible to construe or interpret a provision by reference to a provision of another instrument. Likewise, it is contrary to principle to erect a case of ambiguity or uncertainty by reference to amendments made to another instrument.

• [150] In any event, the TWU submits that the CIT Award draws a distinction in clause 21.8 between afternoon and night shifts where the shift continues for fewer than 5 consecutive afternoons or nights and in clause 21.9(c), which is in equivalent terms to clause 22.10 of the RTD Award, which deals not with shifts continuing on a particular number of afternoons or nights but with shiftworkers who work on an afternoon or night shift. The TWU submits that the notion that this was an oversight or error by the Commission cannot be accepted.

• [151] In the circumstances, the TWU contends that the historical materials relied on as well as the amendments to the CIT Award, do not convey or otherwise point to clause 22.10 being ambiguous or uncertain.

• [152] The TWU submits that clause 22.10 is clear in its terms and operation. It is not capable of more than one meaning and is therefore not ambiguous. Nor is its meaning doubtful or not fixed or determined. It is not uncertain.

• [153] The TWU submits that in determining Toll's application, the Commission is not required by s 599 of the FW Act to make a decision in relation to an application in the terms applied for, subject to certain exceptions which are not presently relevant.

• [154] If, contrary to the foregoing, the Commission finds that clause 22.10 is ambiguous or uncertain, the TWU submits that the Commission may determine to exercise its power to remove any ambiguity or uncertainty by making it absolutely clear that clause 22.10 applies in relation a shiftworker who does not work at least 5 consecutive afternoon or night shifts by varying the clause in the terms detailed at paragraph [124] above. That would ensure, so the TWU submits, the provision operates consistently with its purpose.

• [155] The burden of Toll and the employer organisations' submissions is that clause 22.10 should be amended such that the so-called "Short Shift" intended by the Full Bench when it made the RTD Award view should be given effect. That submission is premised, so the TWU contends, on constructing an ambiguity or uncertainty by a dubious and entirely equivocal historical analyses which does not bear out the contention. Nor is there any evidence to support the notion that the Full Bench's intent in making clause 22.10 was to give effect to the Short Shift View. It is submitted that Toll's proposed amendment should be rejected on this basis.

• [156] The TWU submits that Toll's assertion that "drastic ramifications" will flow to employer operations would occur if what it labels the Individual View were to prevail cannot be sustained. The TWU submits that the evidence, such as it is, is that the sole employer who has (erroneously) applied the so-called Short Shift View is Toll. Toll was, until earlier this year, content to proceed on the Individual View and had offered to compensate shiftworkers accordingly. It is submitted that the notion that a business of Toll's size and with its vast resources would be significantly adversely affected were the Individual View to prevail need only be stated to be rejected. The TWU submits that if the Individual View prevails then it is, in any case, a matter for an employer to arrange its business in a way that avoids compensating shiftworkers compelled to work afternoon or night shifts in a non-continuous manner.

• [157] The TWU submits that it is also irrelevant that the Ai Group may have given its members (erroneous) advice as to the operation of clause 22.10. It and its officers would not be liable for a contravention of s 345(1) of the Act given they (presumably) gave that advice in good faith and without knowing it was false or misleading. It is submitted that there is a lacuna in the materials as to whether any of its members have followed its incorrect advice. The lack of any evidence from the employer organisations as to the asserted deleterious impact of any variation or that penalties would be "prohibitive" permits the drawing of an inference against the employer organisations and Toll of a kind detailed in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389.

• [158] Further, the TWU submits that the bald assertion that the determination of this application will have bearing on the correct construction of other awards is wrong in point of principle. It is erroneous because the Commission's construction of a provision of an award is not binding in relation to another award. Further, it is submitted that the Commission cannot authoritatively determine the legal meaning of a provision of an award, which can only be achieved via the exercise of the judicial power of the Commonwealth. In any event, these proceedings do not concern the correct construction or interpretation of clause 22.10.

• [159] The TWU submits that the matters relied on by Toll, presuming they could be established by evidence, are not, whether taken individually or considered cumulatively, "exceptional". The circumstances relied on by Toll cannot be said to be ones which are other than those regularly, or routinely, or normally encountered in matters such as the present. The test of exceptional circumstances cannot, therefore, be satisfied. They are par for the course and generic and therefore not exceptional.

• [160] The TWU submits that a number of the factors relied on by Toll have, in any case, no evidentiary support. There is no evidence of any likely disputation or litigation in the industry if the Individual View is upheld. The only litigation is that between Toll and the TWU in respect to a single depot.

• [161] Nor does the question of "inconsistency" assist Toll. If, properly construed, clause 22.10 is consistent with the Individual View then it has always, as a matter of law, had that meaning. It is submitted that it would be an unwarranted incursion into and deprivation of the accrued rights of employees for the Commission to, by arbitration, retrospectively vary clause 22.10 to vindicate Toll's preferred Short Shift view.

• [162] It is submitted that the power under 160(1) should not be construed as extending to interfering with accrued statutory rights. The TWU submits that the Commission should not, consistently with this precept of construction, in exercise of its discretion under s 165(2) determine that a variation is to apply retrospectively if retrospective operation could result in employees being deprived of accrued statutory rights. It is submitted that any variation in the present case should be prospective only.

• [163] Finally, the TWU submits that there is no utility whatsoever in a variation being retrospective to 1 January 2010, given the limitations imposed by s 544 of the Act.

• [164] Clause 22 of the RTD Award provides:

For the purposes of clause 22:

(a) Afternoon shift means a shift finishing after 6.30 pm but not later than 12.30 am.

(b) Day shift means a shift starting at 5.30 am or later, but finishing at or before 6.30 pm.

(c) Night shift means a shift finishing after 12.30 am but not later than 8.30 am.

(d) Rostered shift means a shift for which the employee concerned has received at least 48 hours' notice.

(e) Shiftwork means work extending for at least 2 weeks and performed either in daily recurrent periods, wholly or partly between the hours of 6.30 pm and 8.30 am or in regular rotating periods but does not include work performed by day workers employed under clause 13 - Ordinary hours of work and roster cycles - employees other than oil distribution workers.

(a) The hours of work of employees performing shiftwork must be an average of 38 per week. The ordinary hours of work must not exceed 8 continuous hours per day (inclusive of meal breaks) on one of the following bases:

(i) 38 hours within a work cycle not exceeding 7 consecutive days;

(ii) 76 hours within a work cycle not exceeding 14 consecutive days;

(iii) 114 hours within a work cycle not exceeding 21 consecutive days; or

(iv) 152 hours within a work cycle not exceeding 28 consecutive days.

(b) There must be a shift roster which provides for rotation unless it is agreed otherwise by the employer and majority of employees or the employer and an individual employee.

(c) Shift rosters must be posted in a prominent place in the workplace. Shift rosters must specify the starting and finishing times of ordinary hours of respective shifts.

(d) Shift rosters must not be altered unless 48 hours' notice is given.

For ordinary hours shiftworkers must be paid as follows:

Casual employees engaged on shiftwork must be paid the casual loading of 25% of the ordinary hourly rate in addition to the shift rate specified at clause 22.3 above.

(a) outside or in excess of the ordinary shift hours; or

shiftworkers will be paid at 150% of the ordinary hourly rate for the first 2 hours and 200% after 2 hours.

An employer must give an employee 48 hours' notice of any change of shift. If notice is not given, overtime rates must be paid for work done outside the ordinary shift hours within 48 hours of being notified of the change.

22.7 Transfer of day worker to or from shiftwork

(a) Unless otherwise agreed between an employer and an employee, day workers must be given at least 10 hours off duty immediately before commencing, or after ceasing shiftwork.

(b) Day workers may be transferred to or from shiftwork with 48 hours' notice. If notice is not given, an employee must be paid overtime rates for all work done outside previous ordinary working hours within 48 hours of being notified of the change.

22.8 Work on Saturdays, Sundays or public holidays

(a) For work on a rostered shift, the major portion of which is performed on a Saturday, Sunday or public holiday, shiftworkers will be paid as follows:

(b) The penalty rates prescribed by clause 22.8 for work on a Saturday, Sunday or public holiday will be payable instead of the shift rate prescribed in clause 22.3.

While working on day, afternoon or night shift, shiftworkers will be entitled to a paid meal break of 20 minutes. An employee must not be required to work more than 5 hours without a meal break.

22.10 Rate for non-continuous afternoon or night shift

Shiftworkers who work on any afternoon or night shift which does not continue for at least 5 consecutive afternoons or nights must be paid at the rate of 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary hourly rate thereafter for each shift.

Despite any other provision of clause 22,each shift must be paid for at the rate applicable to the day on which the major portion of the shift is worked.

Where the major portion of a shift falls on a public holiday, the whole of the shift will be regarded as a public holiday shift."

• [165] Clause 2 of the RTD Award defines "Non-continuous afternoon or night" to "mean work on any afternoon or night shift which does not continue for at least 5 consecutive afternoons or nights".

• [166] In my objective assessment, ambiguity is apparent on the face of clause 22.10 of the RTD Award. The provision is capable of more than one meaning: the Individual View or the Short Shift View. The ambiguity arises because there is doubtfulness of meaning in relation to whether the word "which" in the first line of clause 22.10 attaches to (a) the "afternoon or night shift" itself or (b) the "work" by a particular "shiftworker" on an "afternoon or night shift". Both interpretations have merit and are well and truly arguable.

• [167] Having found ambiguity in clause 22.10 of the RTD Award, I will now consider whether to exercise my discretion to vary the provision to remove the ambiguity.

• [168] Turning first to the text of clause 22 of the RTD Award, the definitions contained in clause 22.1 are important. Work must extend for at least two weeks to satisfy the definition of "shiftwork". In addition, the definition of "shiftwork" envisages work being "performed either in daily recurrent periods, wholly or partly between the hours of 6.30pm and 8.30am or in regular rotating periods". In order to meet the definition of a "rostered shift" the employee must receive "at least 48 hours' notice" of the shift. If such notice is not received, the employee is entitled to be "paid at 150% of the ordinary hourly rate for the first 2 hours and 200% after 2 hours".[52] In the event that an employee does not receive at least 48 hours' notice of any change of shift, "overtime rates must be paid for work done outside the ordinary shift hours within 48 hours of being notified of the change".[53]

• [169] The default position under clause 22.2(b) of the RTD Award is that the shift roster will "provide for rotation", with the result that it is envisaged that shiftworkers will work different shifts at different times. This default position may be altered if it is agreed otherwise by the employer and either a majority of employees or an individual employee.

• [170] Work on afternoon shift must be paid at 117% of the ordinary hourly rate. Work on night shift must be paid at 130% of the ordinary hourly rate.[54]

• [171] The heading to clause 22.10 states: "Rate for non-continuous afternoon or night shift". It suggests that a particular rate is payable where an afternoon or night shift is non-continuous. This provides some support for the Short Shift View.

• [172] The pronoun "which" in the first line of clause 22.10 is used as a defining clause in relation to the antecedent expression in the clause. The definition or restriction being imposed on the antecedent expression is that it "does not continue for at least 5 consecutive afternoons or nights". The constructional choice for the antecedent expression is either "any afternoon or night shift" or "Shiftworkers who work on any afternoon or night shift". Although both choices are arguable, the better view, in my opinion, is that the text supports the Short Shift View. The pronoun "which" follows immediately after the reference to "any afternoon or night shift". It therefore more naturally defines or restricts the shift, not work by an individual employee on a shift. In addition, if the focus of the clause was intended to be on the work being performed by an individual shiftworker (i.e. the Individual View), it would be more natural to use a pronoun such as "who", "whom" or "whose" to connect the person undertaking the shiftwork with the qualification or restriction that the work being undertaken by the person "does not continue for at least 5 consecutive afternoons or nights". The definition of "non-continuous afternoon or night" in clause 2 of the RTD Award is not of any material assistance because it essentially replicates the language in clause 22.10.

• [173] I consider it relevant to have regard to the antecedents of clause 22.10 of the RTD Award in determining whether to exercise my discretion under s 160 of the Act. The RTD Award was made as part of the award modernisation process. It was a consolidation of a large number of prior federal and state awards.[55] In the process of making the RTD Award the AIRC did not state its actual intention in relation to the trigger for penalty payments in connection with non-continuous afternoon or night shift. However, the AIRC did state that the shiftwork clause in the draft RTD Award had been amended "to reflect the provisions of the corresponding clause in the TW Award 1998".[56]

• [174] At the time the RTD Award was made, the relevant clause in the TW Award was in the following terms:

"34.11 Shift workers who work on any afternoon or night shift which does not continue for at least five consecutive afternoons or nights shall be paid at the rate of time and a half for the first three hours and double time thereafter for each such shift."

• [175] The relevant clause in the RTD Award, as at 1 January 2010 when the RTD Award initially came into operation, was in the following terms:

"24.10 Rate for non continuous afternoon or night shift

Shiftworkers who work on any afternoon or night shift which does not continue for at least five consecutive afternoons or nights must be paid at the rate of time and a half for the first three hours and double time thereafter for each shift."

• [176] There is no material difference between clause 34.11 of the TW Award and clause 24.10 of the RTD Award when it was first made, nor do I consider there to be any material differences between the balance of clause 34 of the TW Award and clause 24 of the RTD Award (at the time the RTD Award was made). In my opinion, the AIRC can be taken to have objectively intended for the shiftwork clause in the RTD Award to have the same meaning that it had in the TW Award.

• [177] Apart from an amendment in 2020 to change the references to "time and one half" and "double time" to 150% and 200% of the ordinary hourly rate, the relevant provision of the RTD Award (now clause 22.10) has not been amended since the RTD Award was made.

• [178] Before turning to the history of the relevant provision in the TW Award, it is appropriate to consider an amendment made to the CIT Award in December 2019. The CIT Award was first made at the same time as the RTD Award, as one of three cognate awards dealing with the private transport industry. The third award in this trio was the Road Transport (Long Distance Operations) Award 2010. The non-continuous shiftwork provision included in the CIT Award at the time it was made was effectively identical to what was then clause 24.10 of the RTD Award.[57] In a decision issued on 24 December 2019,[58] a Full Bench of the Commission reasoned as follows in deciding to amend the CIT Award to avoid an ambiguity:

"[89] Clause 25.9(c) of the current award is the equivalent provision:

'(c) Shiftworkers who work on an afternoon or night shift which does not continue for at least five consecutive afternoons or nights will be paid at the rate of time and a half for the first three hours and double time after that for each shift.'

[90] Ai Group submit that the award clause, as opposed to the Exposure Draft, makes clear that the rate is payable where the shift does not continue for at least five consecutive afternoons and thus the entitlement to the higher rate is not contingent upon whether the employee works on the afternoon shift for at least five consecutive shifts.

[91] To avoid ambiguity, Ai Group propose the following amendment to the description of the relevant afternoon shift in the Exposure Draft (noting the underlined):

Afternoon shift (where the shift continues for fewer than 5 consecutive afternoons)

[92] A similar amendment is proposed for clause 21.9:

Night shift (where the shift continues for fewer than 5 consecutive nights)

[93] No party opposed the proposed amendment. We agree with Ai Group and will amend the draft variation determination accordingly." [Emphasis added]

• [179] The Full Bench amended the relevant parts of what is now clause 21.8 of the CIT Award in accordance with its decision published on 24 December 2019. The Full Bench did not, however, amend what is now clause 21.9(c) of the CIT Award, which is in equivalent terms to clause 22.10 of the RTD Award. Clauses 21.8 and 21.9 of the CIT Award provide:

Shiftworkers must be paid the following shift rates for all ordinary hours of shift worked during the following periods:

Afternoon shift (where the shift continues for fewer than 5 consecutive afternoons

Night shift (where the shift continues for fewer than 5 consecutive nights)

Permanently working alternate night and afternoon shift:

• 21.9 Work on Saturday, Sunday or public holidays - shiftworkers

(a) Shiftworkers will be paid the following penalty rates for work on a rostered shift the major portion of which is performed on a Saturday, Sunday or public holiday:

(b) The penalty rates prescribed by clause 21.9 for work on a Saturday, Sunday or public holiday are payable instead of the shift rates prescribed in clause 0.

(c) Shiftworkers who work on an afternoon or night shift which does not continue for at least 5 consecutive afternoons or nights will be paid at the rate of time and a half for the first 3 hours and double time after that for each shift."

• [180] The Full Bench did not explain in its decision why it amended clause 21.8 of the CIT Award to address the ambiguity in the non-continuous shiftworker provisions but did not amend clause 21.9(c) (or remove it altogether) for the same reason. There is no apparent purpose behind treating clauses 21.8 and 21.9(c) differently. The most likely explanation is that the retention of clause 21.9(c), or its non-amendment, was an unintentional slip. In any event, the fact that the Full Bench accepted that clause 21.8 was ambiguous and amended it in the way that it did to overcome the ambiguity supports the existence of an ambiguity in clause 22.10 of the RTD Award, as well as the application to vary the provision to give effect to the Short Shift View.

• [181] I agree with the submission made by Toll and the Ai Group that clause 22.10 of the RTD Award can be traced back through the TW Award to the TW Shift Work Agreement,[59] which was made in 1962 and included the following provision in clause 5(b):

"Shift workers who work on any afternoon or night shift which does not continue for at least five consecutive afternoons or nights shall be paid at the rate of time and a half."

• [182] Clause 5(b) of the TW Shift Work Agreement was in very similar terms to clause 12(g) of the Metal Trades Award 1952:

"Shift workers who work on any afternoon or night shift which does not continue for at least five successive afternoons or nights in a five day workshop or for at least six successive afternoons or nights in a six day workshop shall be paid at the rate of time and a half."

• [183] The TWU makes the point that, unlike the Metal Trades Award 1952, clause 5(b) of the TW Shift Work Agreement does not make any reference to a "five day workshop" or a "six day workshop". That is correct, but it is not surprising in circumstances where employees in the transport industry do not work in workshops.

• [184] Although there is no evidence or material which definitively proves that the makers of the TW Shift Work Agreement sought to emulate clause 12(g) of the Metal Trades Award 1952 when they agreed on clause 5(b) of the TW Shift Work Agreement, I am satisfied that there is a relevant "association"[60] between the provisions such that it is appropriate to have regard to clause 12(g) of the Metal Trades Award as part of the historical context. I am so satisfied because of the similarity in language between the two provisions and the fact that in those days it was common for provisions in the Metal Trades Award to flow into other awards and agreements.

• [185] The penalties in the non-continuous shift provision in the Metal Trades Award were increased in 1969 and again in 1971. A similar amendment was made to the TW Shift Work Agreement in 1977.[61]

• [186] In 1998, an identical clause to the non-continuous shift provision in the TW Shift Work Agreement was inserted into the TW Award.

• [187] I do not accept the TWU's submission that the absence of any "evidence" from the Commission's predecessor (a) that it intended, when it made the TW Award in 1998, to reflect the terms of clause 5(b) of the TW Shift Work Agreement or (b) as to how it intended clause 34.11 of the TW Award to operate means that the TWU Shift Work Agreement and its origins do not assist in the present case. The fact that the same non-continuous shift provision in the TW Shift Work Agreement was inserted into the TW Award in 1998 establishes the origin of the provision and its contextual relevance.[62]

• [188] As to the history of the relevant provision in the Metal Trades Award, I accept the Ai Group's submission that the non-continuous shift provision in the Metal Trades Award can be traced back to at least 1930 when Justice Beeby of the Commonwealth Court of Conciliation and Arbitration made a new award covering the metal trades industry. Clause 6 of that award relevantly provided:

...

Shift Work in other than Continuous Processes.

(e) In establishments not coming within the definition of continuous processes, any afternoon or night shift which does not continue for more than five successive nights in a five-day workshop, or six successive nights in a six-day workshop, shall be paid for at overtime rates.

For any afternoon or night shift which has been in operation for more than five nights and less than one month, 10 per cent, more than ordinary rates shall be paid, and after such shifts have continued for more than one month, 5 per cent, more than ordinary rates."

• [189] The penalty rate in clause 6(e) of the new award was replaced with a time and a half penalty in 1935.[63]

• [190] By 1952, the relevant provision in the Metal Trades Award was in the following terms:[64]

(h) Shift workers on continuous work whilst on afternoon or night shifts shall be paid 7 ½ per cent, more than the ordinary rate for such shifts.

Shift workers on other than continuous work whilst on afternoon or night shifts shall be paid 10 per cent, more than the ordinary rates for such shifts.

Shift workers who work on any afternoon or night shift which does not continue for at least five successive afternoons or nights in a five day workshop or for at least six successive afternoons or nights in a six day workshop shall be paid at the rate of time and a half.

An employee who -

(i) during a period of engagement on shift, works night shift only; or

(ii) remains on night shift for a longer period than four consecutive weeks; or

(iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give him at least one-third of his working time off night shift in each shift cycle, shall during such engagement, period or cycle be paid at the rate of time and a quarter for all time worked during ordinary working hours on such night shifts."

• [191] The non-continuous shiftwork provision in the Metal Trades Award 1952 was considered by the Commonwealth Conciliation and Arbitration Commission in 1969. In its decision, the Full Bench relevantly observed:[65]

"2 Rates for shifts which continue for less than five successive afternoons or nights in a five day workshop or less than six successive afternoons or nights in a six day workshop.

The present prescription which provides the rate of time and a half for work on afternoon or night shifts which do not continue for at least five successive afternoons or nights in a five day workshop or six successive afternoons or nights in a six day workshop was awarded in 1935. Previously the award prescribed overtime rates for such shifts. The claim is for double rates. Short shifts of this nature are not a frequent occurrence and indeed no evidence was adduced concerning them. We believe that when they are worked they are usually introduced to cope with some emergency which has occurred and that normally they would be brought about by factors beyond the control of the employer. In the circumstances, we do not consider that the rate should be so high that it would be a complete deterrent in emergency situations. On the other hand, it is understandable that such a shift must cause extreme disruption to the normal routine of the employees concerned and we consider that a reasonably high recompense is justified. Particular reference was not made by the respondents to this part of the claim except to say that the applicant had not made out a case. In our opinion, the rate of double time for all such work is too high and to this extent we would refuse the claim. However, although the material before us is somewhat limited we are of the opinion that, having regard to the disabilities which must be encountered by employees in such circumstances, the existing rate should be increased to some extent.

Accordingly, we fix a premium of 50 per cent extra for the first four hours of each such shift and 100 per cent for the remaining hours thereof." [Emphasis added]

• [192] As a result of the 1969 decision, the Metal Trades Award 1952 was varied as follows to increase the applicable penalty:[66]

(g) (i) - - -

(iii) A shift worker who works on an afternoon or night shift which does not continue for at least five successive afternoons or nights in a five day workshop or for at least six successive afternoons or nights in a six day workshop shall be paid for each such shift 50 per cent for the

first 4 hours thereof and 100 per cent for the remaining hours thereof in addition to his ordinary rate..." [Emphasis added]

• [193] I accept the submissions by Toll and the Ai Group that it is apparent from the history which I have outlined that the non-continuous shiftwork provisions in the Metal Trades Award were always intended to deal with introduction by the employer of shifts for a short period of time.

• [194] The relevant clause in the 2020 version of the Manufacturing Award is in the following terms:

"(e) Afternoon and night shift - non-successive shifts

An employee who works on an afternoon or night shift which does not continue:

(iii) for at least 5 successive afternoon or night shifts or 6 successive afternoon or night shifts in a 6 day workshop (where no more than 8 ordinary hours are worked on each shift); or

(iv) for at least 38 ordinary hours (where more than 8 ordinary hours are worked on each shift and the shift arrangement is in accordance with clauses 17.3 or 17.4),

must be paid for each shift 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary hourly rate for the remaining hours."

• [195] Finally, on the topic of relevant history, there is the decision of Justice Munro in Harris Daishowa. That case concerned the following provision in a certified agreement:

"The ordinary shifts forming part of the Shiploading Roster will attract the Shift premiums as follows;

an employee who works an afternoon or night shift which does not continue for at least five afternoons or nights in a five day workshop shall be paid for each shift 50% for the first two hours thereof and 100% for the remaining hours thereof in addition to the ordinary rate."

• [196] Justice Munro regarded the clause as being ambiguous[67] and went on to consider the "long industrial history"[68] of such provisions. His Honour referred to Beeby J's 1930 decision in relation to the Metal Trades Award and concluded (at [23]) that the entitlement was linked "to the duration of the shift itself ... not the configuration of the individual employee's work on particular shifts". His Honour considered (at [23]) that interpretation to be "consistent with industrial usage, and with the Company's practice".

• [197] Although the provision considered by Justice Munro in Harris Daishowa includes reference to "a five day workshop" and introductory words which do not appear in clause 22.10 of the RTD Award, the words "works an afternoon or night shift which does not continue for at least five afternoons or nights" are materially the same as those contained in clause 22.10 of the RTD Award. I do not consider the differences between the provisions to be of any material significance.

• [198] For the reasons given, I am satisfied that clause 22.10 of the RTD Award has a long industrial history which establishes that the ultimate ancestor of clause 22.10 is clause 6(e) of the Metal Trades Award in 1930. This industrial history and the purpose it reveals for the provision in question supports the Short Shift View and weighs in favour of the variation sought by Toll.

• [199] I do not accept the TWU's submission that the purpose of the non-continuous shiftwork provision in the RTD Award (clause 22.10) is to compensate employees for having to perform shiftwork by working afternoon or night shifts non-continuously. This asserted purpose has some justification in particular scenarios. For example, it is at least arguable that employees who are required to work a number of night shifts followed by afternoon shifts (or vice versa) in the same week ought to be compensated for the inconvenience associated with such a change in shifts during the week. But the history of the provision and very similar provisions, coupled with the textual indicators to which I have referred, suggest that the objective intent of clause 22.10 is to compensate employees for the introduction by their employer of shifts for a short period of time. Further, the purpose for which the TWU contends is difficult to reconcile with a range of other scenarios. For example, consider the circumstances of an employee who works, at their own choice, 3 x 12 hour night shifts per week, on the same days each week. Under the RTD Award, a shiftworker's ordinary hours of work "must not exceed 8 continuous hours per day" but may be averaged.[69] If the shiftworker working 3 x 12 night shifts per week undertakes work "outside or in excess of the ordinary shift hours", they are entitled to overtime payments.[70] Because the employee in this example does not have to change shifts during the week, it would be difficult to justify why the employee ought be entitled, in accordance with the Individual View of clause 22.10 of the RTD Award, to penalty rates for each of the 36 hours they work during the hypothetical week in question.

• [200] Having considered the text, context and purpose[71] of clause 22.10 of the RTD Award, I am of the opinion that its true construction is that encapsulated by the Short Shift View. As earlier explained, it is not necessary to determine the proper construction of a provision of an award when considering an application under s 160 to vary the award to remove an ambiguity. But the fact that the variation sought aligns with my opinion as to the proper construction of the clause is a discretionary factor which weighs in support of the application being granted. It is also relevant to the question of whether the RTD Award should be varied with retrospective effect. I will return to that question shortly.

• [201] The Ai Group made an oral submission to the effect that the Commission should exercise its discretion to make the variation sought (in accordance with the Short Shift View) because if the Individual View were adopted then part time and casual employees may receive penalties under clause 22.10 of the RTD Award in circumstances where they are not justified. For example, if a part time or casual employee was only available to work two night shifts per week, then, according to the Individual View, if they were rostered to work those two night shifts they would be entitled to the payment of penalty rates under clause 22.10 for all hours worked on those two shifts. I consider this point to have industrial merit and to weigh in favour of exercising my discretion to vary clause 22.10 so that it accords with the Short Shift View.

• [202] As a further discretionary consideration, Toll submits that the Individual View would have drastic ramifications for employers in the road transport and distribution industry who wish to utilise 12 hour shifts for employees. That is because such employers would, on the Individual View, have to roster shiftworkers for 60 hours over five consecutive days in order to avoid paying cost prohibitive penalties for what would be otherwise regarded as ordinary hours (averaged according to clause 22.2 of the RTD Award). Evidence adduced by Toll demonstrates that it would incur significant additional financial costs if the Individual View prevailed.[72] On the other hand, this inconvenience to employers needs to be weighed against the fact that the Individual View would benefit employees from a wages perspective because it would increase the wages payable to an employee who worked a mixture of afternoon and night shifts in a week. In the absence of evidence or probative material to establish the extent of the overall impact that the Individual View would have on the profitability and efficiency of employer's businesses, and potentially the clients of those employers, I do not consider that this industrial merits argument weighs in favour of the variation sought by Toll. However, I consider that the consequences of the Individual View support Toll's argument as to the likely objective intention behind the making of clause 22.10 of the RTD Award and its predecessors. In particular, the only shiftwork pattern which could realistically be worked under the Individual View without attracting significant (and permanent) penalties would be something like 5 x 8 (i.e. five days per week, eight hours per day) night shift or day shift. I consider it unlikely that the makers of the provision objectively intended for the shiftwork provisions in the instrument to operate in such a restrictive manner.

• [203] On the material before the Commission, I do not accept the argument advanced by the Ai Group that there is an industry practice of paying employees in accordance with the Short Shift View. Although Toll is a major employer in the transport industry and its practice is to pay employees to whom clause 22.10 of the RTD Award applies in a manner consistent with the Short Shift View,[73] no evidence was adduced from other employers in the road transport and distribution industry to explain if they had a practice, and if so, what it was. I accept that the Ai Group advises its members to interpret and apply clause 22.10 of the RTD Award in a manner consistent with the Short Shift View, but there is no material before the Commission to establish whether any employers are aware of, or follow, such advice. I accept that the Fair Work Ombudsman has published a knowledge management article on its website in relation to a provision in the Manufacturing Award which is very similar to clause 22.10 of the RTD Award. The view expressed in that article is consistent with the Short Shift View. The fact that such a publication has been issued does not, however, persuade me, in the circumstances of this case, to make a finding that there is a particular industry practice in the road distribution and transport industry. Accordingly, I will not take into account the industry practice contended for by the Ai Group in exercising my discretion under s 160 of the Act.

• [204] Nor am I persuaded on the material before the Commission that the Short Shift View is supported by considerations related to employee fatigue. The Safe Work Australia "Guide for Managing the Risk of Fatigue at Work" makes a number of suggestions and recommendations, including "restrict number of successive night shifts (no more than 3 to 4 if possible)". But the Guide also states that "key risk factors" include "shift timing and duration ... and the number and length of breaks during and between shifts", as well as "individual differences and preferences". So, for example, there are very likely to be employees who prefer, from a fatigue management perspective, to work 5 x 8 hour night shifts each week or each second week than a mixture of 12 hour afternoon and night shifts each week. I consider employee fatigue to be a neutral consideration.

• [205] I am satisfied that clause 22.10 of the RTD Award is ambiguous and it should be varied in the manner sought by Toll to remove the ambiguity. The discretionary considerations which have persuaded me to make the variation contended for by Toll are that the Short Shift View:

• (a) is consistent with the objective intention of clause 22.10 of the RTD Award (as evidenced by the long industrial history of the provision and its text);[74]

(b) is consistent with my opinion as to the proper construction of clause 22.10 of the RTD Award; and

(c) will ensure that part time and casual employees do not receive an unjustified penalty payment in circumstances where full time employees are not entitled to such payments.

• [206] On the question of when the variation to clause 22.10 of the RTD Award should take effect, there must be exceptional circumstances for the variation to take effect at a time earlier than the date on which the variation determination is made.[75]

• [207] The following principles are relevant to determining whether "exceptional circumstances" exist within the meaning of s 165(2) of the Act:

• • What will amount to "exceptional circumstances" is intrinsically incapable of exhaustive statement.[76]

• • Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[77] To be exceptional, a circumstance "cannot be one that is regularly, or routinely, or normally encountered".[78]

• • Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[79]

• [208] I am satisfied that there are exceptional circumstances in this case by reason of a combination of the following factors:

• (a) The long industrial history of provisions such as clause 22.10 of the RTD Award supports the Short Shift View.[80]

(b) The Short Shift View accords with my opinion as to the proper construction of clause 22.10 of the RTD Award. As a result, I do not consider that there will be any loss of accrued rights by employees as a result of the variation determination having retrospective operation.

• (c) Varying clause 22.10 of the RTD Award with retrospective effect will quell present disputation between Toll and the TWU, as well as avoid future disputation and litigation in the road transport and distribution industry relating to shifts worked by employees prior to the date on which the determination is made.[81] I consider that such future disputation and litigation is reasonably likely to arise if the variation is not made with retrospective effect. I have made that assessment because the TWU clearly has a strong view about clause 22.10 of the RTD Award which is different from the Short Shift View and given the long industrial history of the provision and similar provisions, together with the advice provided by Ai Group to its members and the Fair Work Ombudsman's publication in relation to a similar provision in the Manufacturing Award, I consider it likely that employers (other than Toll) in the road transport and distribution industry have been paying their employees in accordance with the Short Shift View.

• [209] In my opinion, these circumstances are not regularly, routinely, or normally encountered; they are out of the ordinary course.

• [210] I am also satisfied, for the reasons summarised in subparagraphs [208(a), (b) and (c)] above, that the exceptional circumstances in this case are of such weight to justify the exercise of my discretion to depart from the statutory norm whereby variation determinations come into operation no earlier than the day on which the determination is made.

• [211] The variation will come into operation with effect from the commencement of operation of the RTD Award on 1 January 2010. Although this date extends back more than the six year statutory period of limitation provided for under s 544 of the Act, there is the possibility that the Commission, in exercising a power of arbitration under the RTD Award or an enterprise agreement incorporating clause 22.10 of the RTD Award, could make a determination which extended back beyond a period of six years. In addition, I do not consider there to be any material disadvantage or detriment to any affected person by extending the retrospective effect of the variation back beyond six years to the commencement of operation of the RTD Award, as the Full Bench did in 4 Yearly Review of Modern Awards Horticulture Award (at [170]).

• [212] Toll has been paying its employees consistently with the Short Shift View. There is no evidence to suggest that other employers in the transport industry have been paying employees in accordance with the Individual View. Accordingly, I do not consider it necessary or appropriate to include as part of the varied RTD Award any provision to prevent an employer from making a claim for restitution of an overpayment of wages.[82]

• [213] Finally, I do not consider that it is necessary or appropriate in the circumstances of this case to include an example under the varied clause 22.10 of the RTD Award, as suggested by the Ai Group. I consider that it is plain from the amended text of the varied clause 22.10 of the RTD Award what is meant by the provision and how it must be applied. Further, this decision will be publicly available for any interested person to read.

• [214] Pursuant to s 160 of the Act, I determine that clause 22.10 of the RTD Award should be varied by including the words "shift roster" as follows to remove an ambiguity:

"Shiftworkers who work on any afternoon or night shift which shift roster does not continue for at least 5 consecutive afternoons or nights must be paid at the rate of 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary hourly rate thereafter for each shift."

• [215] Pursuant to s 165 of the Act, my determination to vary clause 22.10 of the RTD Award comes into operation on and from 1 January 2010.

[1] Bianco Walling Pty Ltd v CFMMEU [2020] FCAFC 50 (Bianco Walling) at [3], in relation to the analogous provision in s 217 of the Act

[13] Mitsubishi Motors Australia Limited and Ors - re application to vary awards [2000] AIRC 363, S Print T1300 at [21]

[14] Bianco Walling at [68], applying s 578 of the Act; King v Melbourne Swimming Club Inc [2020] FCA 1173 (King) at [130]

[16] (1984) 51 ALR 731 (Re Brack)

[18] CFMMEU v Specialist People Pty Ltd [2019] FWCFB 6307 at [42]

[19] Re Telstra Corporation Ltd (2005) 139 IR 141 at [47]-[48]

[20] Re the Master Plumbers and Mechanical Services Association of Australia [2011] FWA 4781 at [54]

[21] Which was clause 24.10 of the RTD Award when first made in 2010: Re Minister for Employment and Workplace Relations - Award Modernisation [2009] AIRCFB 50; (2009) 180 IR 124 at [98]

[22] Re Request from the Minister for Employment and Workplace Relations - Award Modernisation [2009] AIRCFB 345; (2009) 181 IR 19 at [179]

[23] [1962] CthArbRp 484; (1962) 101 CAR 963

[24] [1952] CthArbRp 11; (1952) 73 CAR 324. Which in turn was substantially similar to clause 6(e) of the Metal Trades Award 1930 [1930] CthArbRp 38; (1930) 28 CAR 923, which appears to be the origin clause in federal awards

[25] The origin clause from the Metal Trades Award was drafted in the context of non-continuous "processes" (that is, the process of the employer), and referred to five successive nights in a five-day workshop and six successive nights in a six-day workshop, thereby tying the shift length to the duration of the employer's operations: Harris Daishowa at [21].

[26] [1969] CthArbRp 581; (1969) 129 CAR 239 at 244-5

[27] Print S1369 (Harris Daishowa) at [22]; See also Gibson Battle and Co Ltd v Gard [1950] CthArbRp 281; (1950) 67 CAR 69

[29] 4 yearly review of modern awards [2019] FWCFB 8569 at [93]

[30] HW Fowler, A Dictionary of Modern English Usage (1st edition, 1926) at 716.

[31] HW Fowler, A Dictionary of Modern English Usage (1st edition, 1926) at 712 and 718

[32] City of Wanneroo v AMACSU [2006] FCA 813; (2006) 153 IR 426 at [53]

[33] Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [26]

[34] [2022] FWCFB 177

[35] [2009] AIRCFB 50

[36] [2009] AIRCFB 345

[37] 4 Yearly Review of Modern Awards - finalisation of Exposure Drafts and variation determinations - Tranche 2 [2019] FWCFB 8569

[41] [1969] CthArbRp 581; (1969) 129 CAR 239 at 244-245

[42] [1969] CthArbRp 581; (1969) 129 CAR 239 at 247

[43] [2008] AIRCFB 717 at [57]

[44] [1941] CthArbRp 448; (1941) 45 CAR 751 at 771

[45] [1969] CthArbRp 581; (1969) 129 CAR 239 at 244-245

[46] [2022] FWC 2146

[47] [2017] FWCFB 6037

[48] [2012] FWA 9606

[49] PR912582

[50] PR912582 at [37]

[55] Re Minister for Employment and Workplace Relations - Award Modernisation (2009) 180 IR 124 at [98]

[56] Re Request from the Minister for Employment and Workplace Relations - Award Modernisation (2009) 181 IR 19 at [179]

[57] The only differences were (1) the CIT Award used the word "an" rather than "any" immediately before "afternoon or night shift", (2) the CIT Award used the word "will" rather than "must" immediately before "be paid at the rate", and (3) the CIT Award used the expression "after that" rather than "thereafter" immediately before "for each shift" at the end of the clause.

[58] 4 Yearly Review of Modern Awards - finalisation of Exposure Drafts and variation determinations - Tranche 2 [2019] FWC 8569

[59] See, too, _TWU v Linf_ox [2014] FCA 829 at [42]- [77]

[60] City of Wanneroo v AMACSU [2006] FCA 813; (2006) 153 IR 426 at [53]

[62] TWU v Linfox [2014] FCA 829 at [42]- [77]; Short v Hercus (1993) 40 FCR 511 at 518

[65] [1969] CthArbRp 581; (1969) 129 CAR 239 at 244-245; see, too, Re Space Tracking Industry Award 1974 (1977) 186 CAR 997 at 1003 and Foenander, Industrial Regulation in Australia, p147: "A worker engaged upon a special or emergency shift is usually paid more than one who is occupied on a rostered shift (e.g., night shift on alternate weeks) or continuous night shift"

[66] [1969] CthArbRp 581; (1969) 129 CAR 239 at 247

[71] See, for example, King at [122]-[129] in relation to the principles applicable to the interpretation of an award

[72] Witness statement of Louise Elks dated 5 September 2022 at [19]

[73] Ex 1 - witness statement of Louise Elks dated 5 September 2022

[74] CFMMEU v Specialist People Pty Ltd [2019] FWCFB 6307 at [42]

[76] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [30]

[77] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

[78] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [30]

[79] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

[80] Mitsubishi Motors Australia Limited and Ors - re application to vary awards [2000] AIRC 363, S Print T1300 at [42]

[81] 4 Yearly Review of Modern Awards Horticulture Award [2017] FWCFB 6037 at [170(b)]

[82] Application by the Australian Industry Group [2010] FWA 8933 at [4]

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