//
[193]
[2023] FWC 1986
General information, not legal advice.
Fair Work Commission
2023-08-10
Original judgment source is linked above.
s.739 - Dispute resolution
Blowflex Mouldings Pty Ltd T/A Bega Dairy and Drinks
Dispute about matters arising under the enterprise agreement and the NES;[s186(6)] - bottle manufacturing - proposal to roster ordinary time shifts on Sundays - whether permitted by terms of enterprise agreement - principles of interpretation - textual considerations - surrounding circumstances - proposed roster change inconsistent with agreement except where agreed - dispute determined
[1] On 8 May 2023 the United Workers' Union (UWU) applied to the Commission under s 739 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a dispute.
[2] The respondent is Blowflex Mouldings Pty Ltd T/A Bega Dairy and Drinks, a part of the Bega Group (Blowflex).
[3] The subject matter of the dispute is a decision by Blowflex to establish new work rosters at its site at Salisbury in suburban Adelaide whereby Sunday would be worked as part of ordinary hours.
[4] The dispute came before the Commission under the dispute settlement procedure of the Bega Dairy and Drinks Salisbury Blow Moulding Enterprise Agreement 2020 (Agreement). The dispute was not resolved at the workplace level. It was referred to the Commission under cl 10.8 of the Agreement.
[5] Conciliation was conducted on 18 May, 21 June and 30 June 2023. Private conciliation was also undertaken. Despite these endeavours, the dispute did not resolve. The UWU sought arbitration.
[6] On 6 July 2023 I issued directions. Materials were filed by the UWU and Blowflex.
[7] Blowflex was legally represented under the terms of the Agreement.[1]
[8] I heard the matter by video conference on 26 July 2023.
[10] Mr Reichstein was not required for cross examination.
[11] All witnesses gave evidence conscientiously. The facts are largely not in dispute. I take into account that some evidence included opinion and hearsay. I treat opinions as akin to submissions and give little weight to hearsay unless corroborated by more direct evidence.
[12] Blowflex objected to some evidence on the ground of relevance. This concerns a broader issue of the extent to which extrinsic material is relevant in determining this matter. I deal with this below.
(a) an employee organisation registered pursuant to the Fair Work (Registered Organisations) Act 2009;
(b) entitled to represent the industrial interests of its members who are Team Members covered by the Bega Dairy and Drinks Salisbury Blow Moulding Enterprise Agreement 2020; and
(c) named in the decision to approve the Agreement as a bargaining representative wanting to be covered by the Agreement and, accordingly, is covered by the Agreement pursuant to s 53(2) of the Fair Work Act 2009 (Cth).
(a) a constitutional corporation and consequently a national system employer within the meaning of the FW Act;
[16] The Respondent became a member of the Bega Group of companies in January 2021 when Bega Cheese Limited purchased the Lion Dairy and Drinks business. Prior to that, the Respondent was part of the Lion Dairy and Drinks business.
[17] The application relates to work performed at Bega Group's site at 167 Cross Keys Road, Salisbury South, South Australia (Salisbury Site).
[18] The Salisbury Site is a milk production site which produces both white milk and flavoured milk, including Farmers Union Iced Coffee and the Classic flavoured milks (Milk Production). It is part of the Bega Group's operation.
[19] The Salisbury Site was previously operated by Lion Dairy and Drinks, and National Foods before that.
[20] The Milk Production is operated by BDD Milk Pty Ltd (formerly known as LD&D Milk Pty Ltd), which is another member of the Bega Group.
[21] The Salisbury Site also has its own 'blowmould' machines which are used to manufacture 2 litre and 3 litre plastic containers in-house (Blowmould Section). Those containers are used for bottling white milk and flavoured milk that is produced at the Salisbury Site.
[22] The Blowmould Section is operated by the Respondent's employees (Team Members).
[23] The Team Members are employed in classifications under Appendix A - Classifications of the Agreement.
[24] The Team Members currently perform work on a roster with shifts commencing Monday to Friday as follows:
(a) Day shift commencing at 7am and finishing at 3pm;
(b) Afternoon shift commencing at 3pm and finishing at 11pm; and
(c) Night shift commencing at 11pm and finishing at 7am the following morning.
[25] The Friday night shift works into Saturday and finishes at 7am Saturday morning.
[26] Some of the Team Members currently also perform additional (overtime) shifts on Sundays.
[27] The Applicant's predecessor Union (the National Union of Workers), the Respondent and Team Members were previously covered by the following agreements:
(a) the Blowflex Mouldings Pty Ltd (South Australia) - National Union of Workers Enterprise Agreement 2017;
(b) the Blowflex Mouldings Pty Ltd (South Australia) National Union of Workers Enterprise Agreement 2014;
(c) the Blowflex Mouldings Pty Ltd (South Australia) - National Union of Workers Enterprise Agreement 2012;
(d) the Blowflex Mouldings Pty Ltd (South Australia) - National Union of Workers Enterprise Agreement 2010;
(e) the Blowflex Mouldings Pty Ltd (South Australia) - National Union of Workers Enterprise Agreement 2003.
[28] The Respondent has proposed to change the roster for the Team Members from ordinary hour day, afternoon and night shifts commencing each day Monday to Friday, to ordinary hour day, afternoon and night shifts commencing each day Sunday to Friday.
[29] On 12 April 2023 a meeting was held with Team Members and a presentation was given by representatives of the Respondent.
[30] On 12 April 2023 a letter about the proposed roster change was also given to the Team Members by the Respondent.
[31] On 17 April 2023 the Applicant wrote to the Respondent.
[32] On 21 April 2023 the Respondent responded to the Applicant's 17 April 2023 letter setting out the Respondent's position and attaching copies of the proposed rosters.
[33] On 2 May 2023 a meeting about the roster change occurred which was attended by Amy Searle, Ben Reichstein, Rodney Thomas and Gary Heath.
[34] The Applicant disputes that the Respondent is permitted to make the proposed roster change.
[36] In addition to the historic enterprise agreements (EAs) referred to in the agreed facts, a further historical agreement applied:
[37] The underpinning modern award incorporated into the Agreement (cl 5.1) is the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award).
[39] Historically, including during the operation of the six preceding EA's, employees in the Blowmould Section worked a full-time roster Monday to Friday that included day shifts, afternoon shifts and night shifts.
[40] The company conducts manufacturing operations at the Salisbury Site on Sundays. Full time employees volunteer to work overtime on Sundays. Some do, and regularly.
[41] Consequently, a full time employee working Monday to Friday shifts and also choosing to work on Sundays will work approximately 38 hours Monday to Friday plus eight hours on a Sunday, totalling 46 hours. They will be paid a full time wage (including shift loadings) plus eight hours of overtime (at double time) for Sunday work.
[42] In April 2023 Blowflex proposed to vary rostering arrangements. It did so with the intention of expanding production, to regularise its Sunday manufacturing operations and with concern at possible fatigue amongst those full-time employees who work across six days in a week (Monday to Friday plus Sunday).
[43] Blowflex proposed to introduce a roster whereby ordinary hours could be worked on any five days Sunday to Friday inclusive (with the Friday night shift still ceasing on Saturday morning).
[44] Blowflex advised its employees and the UWU that it proposed to introduce the change from 1 July 2023.
[45] As the change was likely to have significant effects, it triggered the consultation obligations under cl 9 of the Agreement.
[46] After some consultation, the proposal was met with opposition by the UWU.
[47] On 8 May 2023 the UWU notified this dispute.
[49] Whilst not conceding that the Agreement precludes the proposed change being introduced from the intended date (1 July 2023), Blowflex has not, to date, introduced the change while the dispute has been the subject of conciliation and arbitration.
[50] Further, whilst initially reserving its position, Blowflex has not contended that the dispute resolution provision has not been complied with by the UWU. It accepts that the Commission has jurisdiction to conciliate and arbitrate the dispute under cl 10.8 of the Agreement.
[51] The UWU and Blowflex have agreed that the following question be determined:
"The Respondent has proposed to change the current roster worked by the Team Members to a roster which includes the following shifts:
each day Sunday to Friday (inclusive), with each Team Member rostered on 5 shifts per week, with 0.4 hours accruing to a rostered day off per shift (the Roster Change).
Is the Roster Change permitted by the terms of the Bega Dairy and Drinks Salisbury Blow Moulding Enterprise Agreement 2020?"
"If not, does the Agreement otherwise permit ordinary hours of work to be performed by Team Members on Sundays?"
11.1 The Ordinary Hours of work prescribed herein may be worked on any day or all of the days of the week, Monday to Friday. The hours of a full-time Team Member, subject to the exceptions herein provided, will be an average of 38 hours per week and the subject of Rostered Shifts, to be worked on one of the following bases:
(a) 38 hours within a work cycle not exceeding seven consecutive days;
(b) 76 hours within a work cycle not exceeding fourteen consecutive days;
(c) 114 hours within a work cycle not exceeding 21 consecutive days; or
(d) 152 hours within a period not exceeding 28 consecutive days.
11.5 Despite anything in clauses 11 , 30 and 31, all work performed on a Saturday will be paid in accordance with clause 32, and all work performed on a Sunday will be paid in accordance with clause 33."
A Team Member required to work on a Saturday, will be paid for a minimum of three hours' work
Ordinary Hours of work during shifts beginning on Saturdays will be paid at the rate of time and a half for the first three hours, and double time thereafter.
A Team Member required to work on a Sunday, will be paid for a minimum of three hours' work.
Ordinary Hours of work during shifts beginning on Sundays will be paid at the rate of double time. Provided that where, by agreement between the Company and the Union, and such agreement will not be unreasonably withheld, shifts are rearranged to commence on a Sunday instead of a Monday then Ordinary Rates will be paid for Sunday work."
[55] The expressions "Ordinary Hours", "Ordinary Rate" and "Rostered Shift" are defined terms in cl 1 'Definitions and Interpretation':
[56] The UWU submit that the Roster Change would have the effect of reducing the take home pay of employees (as fewer hours per week would be worked by full time employees) and compromise the right of employees to choose to work on Sundays.
[57] More particularly, the UWU submit that the change is impermissible because the terms of the Agreement only allow ordinary hours to be worked from Monday to Fridays inclusive, and not on Sundays.
[58] The UWU submit that this is the plain meaning of the words in cl 11.1 and the Agreement read as a whole. It submits there is no textual ambiguity. It submits that cl 33 concerns payment only and does not displace the plain meaning of cl 11.1 concerning the regulation of ordinary hours.
[59] To the extent that interpretation of the Agreement requires reference to the Manufacturing Award (cl 5.1), that award also provides for ordinary time to be generally worked on Monday to Friday only with Saturday and Sunday worked in overtime. This interpretation of that Award has been upheld by past court and Commission decisions.
[60] In the alternative, the UWU submits that if ambiguity exists then the construction it favours is supported by surrounding circumstances. In particular, the UWU submits:
[61] It follows that the Union answers 'no' to the question.
[62] Blowflex submit that there is both a business need to operate the Blowmould Section on a Sunday to Friday ordinary time roster, as well as the Roster Change having a beneficial impact on the health and safety of employees having regard to fatigue management.
[63] Although the Agreement is "clumsily drafted" the Roster Change is allowed under the terms of the Agreement when properly construed as a whole. This is because:
[64] Evidence of conduct by Blowflex when bargaining for the 2020 Agreement is not relevant as the bargaining conduct of one party cannot and does not constitute evidence of common intention. In any event, the position advanced by Blowflex at that time was based on a misunderstanding of its rights and obligations under the Agreement.
[65] Provisions of the Manufacturing Award concerning hours of work are not relevant as they are not the same as the terms of the Agreement.
[66] The fact that Sunday work during the life of the Agreement has been rostered and paid as overtime is irrelevant as that work has been a sixth day in addition to the Monday to Friday (including Saturday morning) roster, whereas the Roster Change proposes Sunday as part of a five day per week roster.
[67] It follows that Blowflex answers 'yes' to the question.
[68] In the alternative, Blowflex submit that if the answer to the first question is 'no' because the Sunday to Monday roster proposed is not permitted by the Agreement, the secondary question should be answered 'yes' because, irrespective of the Roster Change, cl 33 allows Sunday work to be singularly rostered in ordinary hours and cl 11.1 of the Agreement is permissive and is not to be construed as precluding ordinary hours being worked on Sundays.
[69] The role of the Commission in this matter is one of private arbitration, defined by the terms of the Agreement.
[70] Section 739(4) of the FW Act provides that "if, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so". However, the Commission "must not exercise any powers limited by the term" (s 793(3)), and "must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties" (which includes an enterprise agreement) (s 93(5)).
[71] As noted, it is not contested that the Commission has jurisdiction under cl 10 of the Agreement ('Dispute Settlement Term') to determine the dispute.
[72] I note one caveat. The Commission has no jurisdiction to finally determine legal rights but can, in the settlement of disputes, express opinions on legal questions.[13] The correct meaning of the Agreement is a legal question. Whether the Agreement permits or does not permit the Roster Change is the central question on which I am called to express an opinion in order to determine the dispute.
[73] In exercising jurisdiction in this matter, I am called on to interpret terms of the Agreement. Principles governing the interpretation of industrial instruments are well settled.[14] They need not be repeated. I apply those principles.
[74] The correct approach was succinctly put by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene:[15]
"[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...". The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced." (citations omitted)
"The starting point is the ordinary meaning of the words, read as a whole and in context.
A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind". The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose".
Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part, or to other documents with which there is an association".
Context may include "... ideas that gave rise to an expression in a document from which it has been taken".
Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...".
A generous construction is preferred over a strictly literal approach, but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties".
Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry." (paragraph numbering and citations omitted)
[77] Whilst the Agreement is poorly drafted, for the following reasons, I conclude that, with one important qualification (below), the Roster Change is not permitted by its terms. With that qualification, the Agreement, when properly construed and read as a whole, provides for ordinary hours to be worked between Monday to Friday only.
[78] With respect to Sunday work, the qualification is that, because of cl 33.2, a shift in ordinary hours rostered to commence on a Monday can by agreement between the employer and the Union (UWU) be rearranged to commence on a Sunday and be worked in ordinary hours and the Union must not unreasonably withhold agreement to the change if it is proposed.
[79] The starting point for the proper construction of the Agreement as it regulates work that can be rostered as part of ordinary hours is cl 11. This is because cl 11, titled as it is 'Hours of Work' is what regulates ordinary working hours and the rosters that underpin those hours.
[80] The first sentence of cl 11 is clear on its face:
"The Ordinary Hours of work prescribed herein may be worked on any day or all of the days of the week, Monday to Friday."
[81] In referring to "Monday to Friday" in cl 11.1 the Agreement is expressing what is meant by the immediately preceding phrase "any day or all of the days". The words "Monday to Friday" must be given work to do. They are not exemplars of days of the week. Rather, they specify the days of the week for the purpose of what that sub-clause regulates.
[82] I reject the employer's submission that the word "may" in cl 11.1 is permissive such that it allows ordinary hours to be worked Monday to Friday but does not preclude working of ordinary hours on other days. Whilst there may be occasions in statutes, delegated legislation or industrial instruments where the word "may" is permissive this is not such a circumstance. Applying a purposive approach to interpretation, the purpose of cl 11 is to prescribe and regulate working hours. It acts to constrain what an employer would otherwise be lawfully permitted to require of its employees. It is a clause designed to restrict ordinary working hours to certain days of the week (cl 11.1), certain hours of a day (cl 11.3), and a certain quantum of hours across roster cycles (cl 11.1 and 11.2). Given its purpose is to regulate in these ways, it cannot have a general permissive meaning.
[83] The expression "Ordinary Hours" (at least when capitalised) is a defined term. When cl 11 refers to the phrase "Ordinary Hours" (as it does in cl 11.1) its meaning must be drawn from cl 1.1. That definition refers expressly to cl 11. In so doing, the definition supports the aforementioned construction whereby it is cl 11 of the Agreement that regulates the rosters under which ordinary hours can be worked in the Blowmould Section.
[84] The definition provides that Ordinary Hours be "the subject of a rostered shift". "Rostered Shift" is a defined term. This expression is defined in cl 1.1 as being a shift for which at least 48 hours' notice has been given. However, that "Ordinary Hours" must be worked as part of a rostered shift for which prior notice is given takes the determination of this matter no further. The Roster Change proposes a rostered shift commencing on a Sunday. In that sense, the proposal conforms to that element of the definition of Ordinary Hours. However, it does not conform to the definitional requirement that such hours be determined "in accordance with clause 11".
[85] I do not accept the employer's submission that cl 11 does not apply to shift work or rostered shifts. There is nothing express or by reasonable inference in the language of cl 11 or in the Agreement when read as a whole which suggests that such a substantial carve-out of rosters or working arrangements is made from the operation of the Hours of Work clause.
[86] However, the employer rightly submits that in determining the question posed the Agreement must be read as a whole. It relies (amongst others) on cl 33 (Sunday Work).
[87] All clauses in an Agreement must have utility and those who drafted the Agreement are likely to have had a practical bent of mind. The proper construction of the Agreement requires the Commission to discern the correct meaning of the Agreement as a whole such that clauses 11 and 33 operate coherently but without the Commission rewriting the Agreement or straining its language beyond its terms.
[88] The primary purpose of cl 33 appears to be the regulation of payment for work on Sundays. Each sentence in cl 33 ends with the prescription of a payment rule. It does this by regulating payment for a minimum number of hours (cl 33.1) and at certain rates (cl 33.2). If the sole meaning of cl 33 was the regulation of a payment rate for Sunday overtime at a minimum payment of three hours, cl 33 would be coherent with cl 11.1.
[89] However, that is not the case. Clause 33.2 refers in its opening words to Sunday work as "Ordinary Hours" (capitalised). Further, it contemplates a circumstance where the commencement time for a Monday shift is moved, by agreement not unreasonably withheld, to a Sunday with that Sunday work then being paid at ordinary rates.
[90] Thus, there is an apparent textual inconsistency between cl 11.1 and cl 33.2.
[91] The UWU submits that the textual inconsistency can be resolved by construing the Agreement such that cl 33 is strictly limited to prescribing payment for Sunday work and only cl 11 regulates the rostering of Ordinary Hours. I do not accept this submission. Even though the primary purpose of cl 33 appears to be the regulation of payment for Sunday work, if the rostering of Sunday work under the Agreement was wholly regulated by cl 11.1 then cl 33.2 would be nonsensical to the extent it contemplates certain Sunday work being "Ordinary Hours" (that is, not overtime). The textual inconsistency cannot be cured by giving no meaning to a large portion of cl 33.2.
[92] A further submission by the UWU is that the textual inconsistency resolves by having regard to the terms of the Manufacturing Award and decided cases under that award. This submission does not advance the issue. Whilst clause 5.1 of the Agreement incorporates the Manufacturing Award it does so only insofar as there is no inconsistency. Clause 33 as it appears in the Agreement does not exist in the same terms in the Manufacturing Award. Further, cl 17 of the Manufacturing Award ('Ordinary Hours of Work and Rostering') is not in the same terms as cl 11 of the Agreement. Clause 17.2(c) of the Manufacturing Award has some similarity in language to cl 11.1 but also relevant differences. Given that cl 33 gives rise to apparent textual inconsistency with cl 11 of the Agreement, the Manufacturing Award provides no relevant guidance. Decisions that have concerned ordinary hours under the Manufacturing Award have not had regard to comparable clauses to cl 11 and cl 33 of the Agreement. The determination of this matter must do so. The decisions relied upon by the UWU provide no relevant guidance.
[93] Blowflex submit that the textual inconsistency falls away if cl 11.1 is read permissively. I have not however concluded that such a construction is open in a clause that centrally regulates hours of work and where the term "Ordinary Hours' is expressly defined by reference to cl 11 (and not other clauses).
[94] Blowflex further submit that cl 31.4 ('Shift work at weekends') and cl 32 ('Saturday work') provide guidance to reconciling cl 33 and cl 11.1 because the effect of those clauses is that ordinary hours can be worked beyond Monday to Friday (that is, on a Saturday).
"For work performed between midnight on Friday and the ordinary ceasing time on Saturday, Team Members working shifts must be paid in accordance with clause 32."
[96] This sub-clause clearly contemplates that a shift can include certain weekend hours of work. Whilst not using the defined phrase "Ordinary Hours" it refers to "ordinary" ceasing time on a Saturday.
[97] Does this sub-clause assist in the construction of cl 11.1?
[98] It does, but only in the following manner.
[99] A shift in "Ordinary Hours" can include "one or more days each week" (cl 11.2(b)). Night shift is provided for by the Agreement (cl 31.2). The time a shift commences outside the daily spread of Ordinary Hours can be determined by mutual agreement (cl 11.3).
[100] This being so, cl 31.4 expressly contemplates circumstances where night shift commences in Ordinary Hours before midnight on a Friday but does not conclude until the next day (Saturday). That shift is a rostered shift. Being a rostered shift commencing on a Friday, the whole of the shift is Ordinary Hours but the combined effect of cl 11.1 and cl 31.4 is that work "performed between midnight on Friday and the ordinary ceasing time on Saturday" is paid in accordance with cl 32 (which exceeds the night shift loading). In this sense but this sense only do clauses 32 and 31.4 assist in the construction of cl 11. Clause 11 is to be interpreted as including in Ordinary Hours those hours worked to complete an ordinary time shift that commenced on a Friday. Otherwise, cl 32 only regulates payment for Saturday work. It does not prescribe Saturday work generally as Ordinary Hours.
[101] Given this, and having regard to the terms of cl 33.2 in relation to Sunday work, I consider that cl 11 similarly operates to permit a rostered shift commencing on a Monday to be rearranged by agreement (not unreasonably withheld) to commence as ordinary hours on a Sunday provided that that shift concludes on the Monday (that is inside the Monday to Friday period).
[102] Applying this construction, textual coherence exists between cl 11 and cl 33 (in respect of Sunday work) in a similar way to that which exists between cl 11 and cl 31.4 and cl 32 (in respect of Saturday work) but with the critical proviso that cl 33.2 only permits Sunday work in ordinary hours if that shift is rearranged from a Monday commencement by agreement with the UWU (not unreasonably withheld). In other words, that coherence is broadly asymmetrical at both ends of the Monday to Friday period. The Agreement provides for a similar (though not identical) capacity for a rostered shift to include hours worked at either end of a weekend as ordinary hours where those weekend hours are connected to a shift that commenced in ordinary hours on a Friday or ceased in ordinary hours on a Monday.
[103] Accordingly I conclude that, with this important qualification, the Roster Change is not permitted by the terms of the Agreement. Subject to this qualification, the Agreement when properly construed and read as a whole provides for ordinary hours to be worked between Monday to Friday only.
[104] Given that the Agreement is capable, on a textual construction, of answering the question posed, it is not necessary to resort to extrinsic material or surrounding circumstances.
[105] However, for the sake of completeness, and in the event that it was concluded that the Agreement is ambiguous such that the question cannot simply be answered by reference to its text, I deal with the surrounding circumstances.
[106] Where ambiguity in an industrial instrument exists, the principles of interpretation permit reference to relevant surrounding circumstances. The surrounding circumstances in this matter are said to concern historical custom and practice under comparable terms of past EAs applying to the Blowmould Section.
[107] In this matter, those surrounding circumstances generally support the UWU contention and the textual construction I have determined.
[108] An inference can be drawn from the immediate past history of comparable clauses of the Agreement and the manner in which custom and practice was applied during the life of those EAs such that the 2020 Agreement means that Sunday work in the Blowmould Section is voluntary overtime and not able to be generally rostered as ordinary hours.
[109] This finding is made for the following reason.
[111] The evidence clearly establishes that during the life of the predecessor Agreements the Blowmould Section has operated on a Monday to Friday ordinary time roster with work on Sundays being voluntary overtime.
[112] The evidence also establishes that clauses concerning ordinary hours in the immediately preceding predecessor Agreement (the 2017 Agreement) appear, for relevant purposes, in the same terms as the disputed clauses in the 2020 Agreement. The relevant terms of cl 11 were carried over from the 2017 Agreement, as were the comparable terms of cl 33.
[113] Blowflex submit that reliance should be had to changes to hours of work clauses between the 2012 and 2014 EAs. The 2014 EA is two generations of enterprise agreement removed. Whilst the expression "Ordinary Hours" was first incorporated into the equivalent of cl 33 when the 2014 EA was made and the now equivalent of cl 11.5 was also added at that time, those changes are not a reliable basis on which any meaningful conclusion can be made concerning the interpretation of the 2020 Agreement. In any event, the 2014 Agreement did not on its face provide for Sunday work in ordinary hours, nor was that the practice during its life.
[114] Further, the evidence clearly establishes that the rostering of ordinary hours in the Blowmould Section at the time the 2020 Agreement was made and approved was that which applied during the life of the 2017 Agreement.
[115] This being so, a strong inference exists that the relevant terms of the 2020 Agreement, imported as they are from the 2017 Agreement, do not generally permit the rostering of ordinary hours on a Sunday, either as stand-alone Sunday work or as part of a Sunday and weekday roster cycle.
[116] The UWU urge that a finding of common intention be made by reference to both post-Agreement conduct and the bargaining conduct of the employer.
[117] I decline to do so for the following reasons.
[118] Firstly, it is unnecessary to do so. The history of the disputed clauses in the context of the language of the Agreement and past custom and practice would itself suffice to aid the construction of the Agreement by reference to extrinsic material should that have been necessary.
[120] Thirdly, similar caution should be applied before making a finding of common intention by reference to bargaining conduct.
[122] The evidence of Ms Searle was to the effect that, in presenting some of that material to the UWU during the 2020 negotiations, she was under what Ms Searle now considers to be a misunderstanding about the correct meaning of the 2017 (and now 2020) Agreement insofar as ordinary time work on a Sunday was concerned. This suggests unilateral (not common) inadvertence.
"The mere fact that something was done (or not done) in the past is not evidence of a settled interpretation, of which the parties had a common understanding."
[124] Aside from the Agreement itself, no other evidence is before me of an understanding between the negotiating parties that could safely constitute a written record of a meeting of minds. Whilst evidence of the employer's bargaining conduct for the 2020 Agreement is broadly consistent with the finding I have made, I do not make that finding on that basis.
[125] The textual construction I have applied, based as it is on the Agreement read as a whole, is supported by the history of the disputed clauses. I have concluded that the Agreement does not permit ordinary hours to be rostered outside of Monday to Friday except in the following circumstances.
[126] The first is where hours are worked after midnight Friday as part of an ordinary time rostered shift that commenced before midnight Friday. This is permitted because of the operation of cl 31.4.
[127] The second is where a shift is rostered to commence on a Monday in ordinary hours but the employer or the employee propose that the starting time be rearranged to commence the shift on the preceding day (a Sunday). In those circumstances Sunday work in ordinary time is permitted but only by agreement between the employer and the UWU but the Union must not unreasonably withhold agreement. This is permitted because of cl 33.2.
[128] Outside these circumstances, ordinary hours are not permitted to be generally rostered or worked on Sundays. Work on Sundays must otherwise be in overtime.
[129] Accordingly it follows that the answer to the question posed is 'no' except in the circumstance outlined in paragraph [127] of this decision.
[130] For the sake of completeness, I am also of the opinion that the answer to the secondary question posed by the employer is 'no' with the same exception applying. This is because I have not agreed with the employer that cl 11.1 of the Agreement is permissive such that use of the word "may" permits ordinary hours to be worked on Monday to Friday but does not preclude ordinary hours to be worked on Sunday, or that cl 11 does not apply to shift work. For reasons expressed, I have concluded that cl 11.1 does not generally permit ordinary hours to be worked on a Sunday whether as part of day work or shift work. I have also concluded that cl 33, when read in the context of the Agreement as a whole, does not have that effect. The opening phrase "Ordinary Hours of work" in cl 33.2 is to be read as a reference to the circumstances provided for in that sub-clause itself (when ordinary hours are rearranged to commence on a Sunday), but not more broadly. I have concluded that the Agreement does not permit the Sunday to Friday roster as proposed and, for the same reasons, does not permit Sunday to be generally worked in ordinary hours on a stand-alone basis. It is a Monday to Friday ordinary time Agreement, with the stated exceptions.
[132] Firstly, nothing in this decision should be interpreted as the Commission expressing a view on whether the proposed Roster Change is reasonable having regard to operational need, cost or impacts on employees. The principles of interpretation require the Commission to take the Agreement as it is found. Those principles preclude the Commission from straining the language of an enterprise agreement to provide a different result.
[133] Clearly, settling a dispute over an important operational and industrial change by applying principles of construction to the language of an existing Agreement is a blunt instrument. Only the parties and not the Commission can, in negotiating the dispute, apply broader policy or fairness considerations to the extent they wish to do so. It is for this reason that the Commission invested time and effort prior to the arbitration of this matter to encourage an industrial settlement.
[134] Secondly, I have not found that increasing production at the Salisbury Site or operating the Blowflex Section on Sundays or weekends is impermissible. The Agreement does not regulate business operations. It regulates terms and conditions of employment. I have only dealt with the industrial question of whether the proposed Roster Change or Sunday work in ordinary time is permitted under the terms of the existing Agreement.
[135] Thirdly, having found that the answer to the questions is not an unqualified 'yes' or 'no', I recommend that the parties deal with the Roster Change proposed, the poor drafting and the broader policy and fairness considerations in the forthcoming bargaining round. The Agreement has reached its nominal expiry. This decision should not be the final word on whether changed rostering arrangements should be put in place in response to expansion of the productive capacity of the Salisbury Site. The FW Act requires such bargaining, if commenced, to be conducted in good faith.
[136] Noting that the questions requiring determination concern only Sunday (and not Saturday) work, the answers to the questions are as follows:
Is the Roster Change permitted by the terms of the Bega Dairy and Drinks Salisbury Blow Moulding Enterprise Agreement 2020?"
Answer: No, except in the circumstance outlined in cl 33.2 of the Agreement (see paragraph [127] of this decision).
"If not, does the Agreement otherwise permit ordinary hours of work to be performed by Team Members on Sundays?"
Answer: No, except in the circumstance outlined in in cl 33.2 of the Agreement (see paragraph [127] of this decision).
Ms M McCarthy, of and on behalf of the United Workers' Union
Ms K Aistrope, with permission, with Mr M Muntz and Mr T Scott, on behalf of Blowflex Mouldings Pty Ltd T/A Bega Dairy and Drinks
[8] Lion Dairy and Drinks Salisbury Production Enterprise Agreement 2019
[10] Submissions in Reply paragraph 31(b)
[11] UWU Submissions 14 July 2023 and Submissions in Reply 21 July 2023
[12] Blowflex Submissions 14 July 2023 and Submissions in Reply 21 July 2023
[13] Qantas Airways Limited v Mazzitelli [2020] FWCFB 2628 at [33]- [34]
[14] AMWU v Berri Pty Ltd [2017] FWCFB 3005 (Berri), drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447 (Golden Cockerel)
[15] [2018] FCAFC 131, [197]
[16] [2020] FCAFC 123, [65]
[17] _Australian Workers Union v Orica Australia Pty Ltd (_Orica) [2022] FWCFB 90; Fresh Food Management Services Pty Ltd [2023] FWCFB 97; Sydney International Container Terminal Pty Limited t/a Hutchinson Ports v CFMMEU [2023] FWCFB 87
[18] Berri [2017] FWCFB 3005; Golden Cockrel [2014] FWCFB 7447
[19] Ridd [65] (v); Short v Hercus Pty Ltd [1993] FCA 51
[20] For example, the full bench decision in Fresh Food Management Services Pty Ltd [2023] FWCFB 97 at [65]
[24] Shop Distributive and Allied Employees' Association v Woolworths Limited [2006] FCA 616, [31]
Printed by authority of the Commonwealth Government Printer
United Workers' Union
Blowflex Mouldings Pty Ltd T/A Bega Dairy and Drinks [2023] FWC 1986