[2019] FWC 137
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.739—Dispute resolution

CPSU, the Community and Public Sector Union
v
Victoria State Emergency Service Authority T/A Victoria State Emergency Service
(C2018/2533)

COMMISSIONER BISSETT

MELBOURNE, 16 JANUARY 2019

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

[1] The CPSU, the Community and Public Sector Union (CPSU) has made an application for the Fair Work Commission (Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (FW Act) and in accordance with the resolution of disputes procedure of the Victoria State Emergency Service Agreement 2016 1 (2016 Agreement). The dispute relates to the application of clause 30.3 – Commuted Allowance of the 2016 Agreement.

[2] The dispute was subject to conciliation before me and further conferences of the parties where it failed to settle. The CPSU have sought that the dispute be arbitrated in accordance with the dispute settlement procedure.

[3] Both the CPSU and Victoria State Emergency Service Authority T/A Victoria State Emergency Service (VICSES) were given permission to be represented by a lawyer. In granting permission I noted that there was some complexity in the matter before the Commission and it would be dealt with more efficiently if permission was granted.

Jurisdiction

[4] It is accepted that, prior to determining if the Commission has jurisdiction, it is necessary to properly characterise the matter in dispute between the parties.

[5] This dispute concerns clause 30.3 of the 2016 Agreement. Clause 30.3 states:

30.3 Commuted Allowance

(a) The Commuted Allowance is paid to VICSES staff employed in the roles listed in the Operations Progression Framework or acting in one of those roles as approved by the Chief Officer Operations.

(b) The Commuted Allowance is a 15% loading payable on the base rate at all times (at commencement of employment) including periods of annual leave and long service leave, but excluding any period of continuous sick leave in excess of 4 weeks.

(c) The Commuted Allowance is in compensation for:

(i) The requirement to be rostered each financial year as Duty Officer (this includes being rostered as Agency Commander) or Standing By For Recall to Duty for a minimum of 11 weeks and a maximum of 13 weeks (a “week” being 5 week nights and 2 weekend day/nights) or the equivalent number of hours in any part week roster cycles;

(ii) Where necessary and agreed between the employee and the relevant agency commander, a part duty roster cycle of between 1 and 5 days or day/nights for Duty Officer (including Agency Commander) or Standing By for Recall to Duty, will be worked to meet local requirements such as short term staff absences or operational readiness requirements.

(iii) The minimum and maximum requirements shall be reduced on a pro rata basis where the employee has any period of long service leave during the financial year. A Duty Officer (including Agency Commander) or Standing by for Recall to Duty officer will be rostered for no more than 5 week nights and 2 weekend day/ nights duration consecutively.

(iv) Accumulation of Time in Lieu (TIL) instead of overtime payment at the rates set out in clause 34.5(b)

(v) Management of hours by the employees such that the employee must ensure that he or she arranges his or her start and finish time each day to efficiently address the employee’s actual work requirements without incurring excessive time on duty and accrued TIL.

(d) Employees rostered as Duty Officer (including Agency Commander) or Standing By for Recall to Duty will have immediate access to a service vehicle with appropriate communications.

[6] The Operations Progression and Rank Framework2 sets out the ranks and progression and promotion requirements for operational staff employed by VICSES. It is this group of employees who receive a commuted allowance. There are further clauses of the 2016 Agreement which provide for the payment of a Duty Officer (DO) allowance (clause 30.7) or a Standing-by for Recall to Duty (SBFRD) allowance (clause 30.6). Employees in receipt of the commuted allowance are not entitled to receive payment of a DO or SBFRD allowance.

[7] The dispute between the parties goes to whether clause 30.3(c) operates to limit the period of time a relevant employee (a commuted allowance employee) can be rostered as DO or SBFRD (and for which the 15% commuted allowance is paid) to 13 weeks or if this period can be extended by agreement and where necessary.

[8] CPSU says that clause 30.3(c)(i) imports an express provision that the commuted allowance is in compensation or the requirement to be rostered as DO for a maximum of 13 weeks per year or for the equivalent number of hours in a part week cycle. It says that the use of a semi-colon at the end of paragraph (i) means that clause 30.3(c)(ii) needs to be read as an extension to paragraph (i) such that paragraph (ii) provides additional guidance as to what the commuted allowance is in compensation for but does not extend the maximum 13 week period in paragraph (i).

[9] VICSES does not agree that any such limitation operates and says that clause 30.3(c)(ii) allows for additional rostered times as a DO or SBFRD where necessary and agreed by a relevant employee and that such work does not attract any additional compensation.

[10] CPSU and VICSES generally agree on the characterisation of the dispute and agree that it is a matter arising under the 2016 Agreement.

[11] Taking into account their views and having heard from the parties I am satisfied that the dispute is whether time worked by a rostered duty officer or a standing by for recall to duty employee in receipt of commuted allowance in accordance with clause 30.3(c)(ii) is included in, or is additional to, the 13 week maximum that a commuted allowance employee can be required to be rostered under clause 30.3(c)(i).

[12] I am satisfied that the dispute is about a matter arising under the 2016 Agreement in that it relates to the operation of clause 30.3 and, in particular, clause 30.3(c).

[13] Further, I am satisfied that the steps set out in the resolution of disputes clause (clause 13 of the 2016 Agreement) have been followed and that there has been a genuine attempt to resolve the dispute at the workplace level.

[14] For these reasons I am satisfied that I have jurisdiction to deal with the dispute.

Principles of interpretation

[15] There is no dispute between the parties that the appropriate principles relevant to interpretation of an agreement are those in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Limited3(Berri) as follows:

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

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

(i) the text of the agreement viewed as a whole;

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

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

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement. 

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning. 

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists. 

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement. 

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. 

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement. 

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. 

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

[16] The first task is to determine if clause 30.3 has a plain meaning or is ambiguous or susceptible to more than one meaning.

Submissions and evidence as to the meaning of the clause

[17] CPSU says that the words of clause 30.3 are clear having regard to their context and purpose. It submits that:

  The function of clause 30.3(c)(i) is to set a 13 week rostering maximum for commuted allowance employees in the role of DO or SBFRD whether worked in full weeks or part weeks;

  The function of clause 30.3(c)(ii) is to outline circumstances where non-full week rosters can be worked to meet local requirements;

  Each of paragraphs (i)-(v) in clause 30.3(c) are facets of the commuted allowance within the 13 week limit.

[18] CPSU submits that the words of the clause support its construction. It submits that clause 30.3(c)(i) explicitly uses the word “maximum” to set a limit on the number of weeks a commuted allowance employee can be rostered. Further, there is nothing in clause 30.3(c)(ii) to suggest that the maximum can be exceeded by working the hours in paragraph (ii) and paragraph (i) contemplates part weeks counting towards the maximum (“or the equivalent number of hours in any part week roster cycle”). The condition in paragraph (ii) that a part roster must be agreed protects an employee from changes to a planned and established roster on short notice. It does not suggest additional rostering beyond the 13 weeks maximum.

[19] CPSU further submits that the 13 week maximum limit in clause 30.3(c)(i) does not operate to limit how often an employee can be rostered as DO or SBFRD but rather to limit what the commuted allowance is paid for. That is, it says that the commuted allowance is paid for being rostered for 13 weeks. Further rostering is available but a commuted allowance employee would need to be paid pursuant to other provisions of the 2016 Agreement (in particular clause 30.8 or clause 37).

[20] VICSES submits that the ordinary and plain meaning of clause 30.3(c) does not restrict an employee in receipt of the commuted allowance from working hours as a DO or SBFRD in excess of 13 weeks in any year where such additional hours are worked in accordance with clause 30.3(c)(ii), that is where necessary and agreed. The clause, it says, is not susceptible to more than one meaning.

[21] Rather, VICSES submits that clause 30.3 sets a cap on commuted allowance compensation, but does not set a cap on the hours that may be worked as a DO or SBFRD for which the commuted allowance is payable. VICSES says that the payment of the commuted allowance compensates for the mandatory requirements for rostering as DO or SBFRD (clause 30.3(c)(i)) and any additional rostering as agreed by the employee (clause 30.3(c)(ii)). It does not, in doing so, impose any cap on how many weeks or part weeks an employee may be rostered.

[22] It says that the clause appears in Part 4 of the 2016 Agreement which deals with monetary entitlements and does not appear in Part 5 which deals with hours of work and that this contextual consideration is important. It suggests that the clause does no more than identify what the 15% commuted allowance is paid for. It says the clause is directed to compensating in a single allowance what would otherwise apply under the 2016 Agreement if an employee was not in receipt of the commuted allowance.

[23] VICSES submits that if it had been intended that the clause operate as put by CPSU then it would have been expected to have been made explicitly clear that there was an absolute cap of 13 weeks or that any rostering under clause 30.3(c)(ii) counted towards the 13 weeks in clause 30.3(c)(i) but such an express statement was not included.

[24] VICSES also submits that the imposition of any cap on hours worked as DO or SBFRD would be an issue of high importance for it as it would remove flexibility in rostering to deal with emergencies.

[25] VICSES says that there is a substantial and well understood difference between the phrase “requirement to be rostered” and “where necessary and agreed” and that the distinction should not be overlooked. Further, it submits that both sets of words must be given effect.

[26] These matters, it says, show the clear and ordinary meaning of clause 30.3(c).

[27] With respect to the punctuation issues raised by CPSU, VICSES says that the relevant case law supports a conclusion that the semicolon at the end of paragraph (i) should not control the meaning of the clause if the meaning is otherwise “tolerably clear”; the semicolon may be a typographical error, particularly in circumstances where other paragraphs end with a full stop; paragraphs (i) and (ii) are independent but related clauses; and the semicolon is not followed by an “and” or “or” and hence cannot be viewed as a replacement for a comma.

[28] For these reasons VICSES submits that clause 30.3(c)(i) sets a 13 week limit on the number of weeks a commuted allowance employee can be rostered as DO or SBFRD but clause 30.3(c)(ii) operates to provide an exception to that limit where certain conditions are met.

Is clause 30.3 ambiguous and susceptible to more than one meaning?

[29] Whilst neither CPSU nor VICSES suggests the clause is ambiguous or uncertain each is strongly committed to its own interpretation of the clause and cannot see that the other has merit. Whilst a mere dispute as to the interpretation of a clause does not, of itself, make the words uncertain or ambiguous, in this case I find there is basis in the clause for a dispute between the parties and that dispute supports a finding of ambiguity. On the submission before me there is at least more than one reasonably arguable interpretation of clauses 30.3(c)(i) and (ii). For this reason alone I would find that the clause is ambiguous and uncertain.

[30] In addition, clauses 30.3(c)(i) and (ii), on their face, appear to contradict each other. Paragraph (i) read alone clearly suggests that the maximum period a commuted allowance employee can be rostered is 13 weeks in any financial year. Paragraph (ii) read alone suggests that where necessary and agreed a commuted allowance employee can be rostered as DO and SBFRD with no reference to any limit.

[31] The punctuation used in clause 30.3(c) does not provide any clarity (as would be hoped from punctuation). The colon at the end of the introductory words (“The Commuted Allowance is in compensation for:”) would normally suggest that what follows is a list of matters that the allowance compensates for. But some of those things in paragraphs (i)-(v) of clause 30.3(c) are clearly not matters that an allowance of any description can compensate an employee for. For example, it is not clear how an allowance is compensation for pro-rating of hours for a part-time employee (paragraph (iii)). This suggests a discontinuity within clause 30.3(c) that supports a finding of ambiguity.

[32] Further, the semi-colon at the end of paragraph (i), in the context of mixed (and at times missing) punctuation in other paragraphs does not provide any assistance. I do not accept however that the clause would be otherwise “tolerably clear” if I did, in fact, ignore the semicolon or not read it as CPSU asks. The use of the word “maximum” in clause 30.3(c)(i) assures this.

[33] I do not consider that the placement of clause 30 in Part 4 of the 2016 Agreement is indicative that it relates only to what the allowance compensates for and cannot be taken to place any limit on the time spent as DO or SBFRD. Whilst the location of the clause within the context of the 2016 Agreement is a relevant consideration, it is not determinative of the interpretation of the clause and should not be used to create a limitation that is otherwise not apparent. For example a clause about overtime payment might be found in an hours of work section or a rates of pay section or a penalty rates section. Such placement does not mean it cannot be about each of these matters. Care should be taken in reading too much into such placement of the clause so as to constrain the meaning as opposed to assist in its interpretation. It is also necessary to bear in mind (as is evidenced by the punctuation issue discussed above) that the 2016 Agreement was not drafted by professional drafters but people of a more practical and/or industrial bent.

[34] Given the strong diversity of views, the inconsistent use of punctuation in clause 30.3(c) as a whole and the lack of clear relationship between all of the paragraphs in clause 30.3(c) to the introductory words, I am satisfied that the clause is ambiguous and susceptible to more than one meaning.

The surrounding circumstances

[35] Having found that the 2016 Agreement is ambiguous or susceptible to more than one meaning I am therefore satisfied, in accordance with the principles in Berri, that I may take into account the surrounding circumstances in resolving the meaning of clause 30.3 of the 2016 Agreement. The admissibility of surrounding circumstances is limited to that which establishes objective background facts which were known to both parties. Evidence as to what the employees were told during negotiations or as part of the approval process for the 2016 Agreement may be of assistance. In considering such matters, the purpose is to identify the objective common intention of the parties.

Notorious facts

[36] The CPSU submits that I can have regard to key changes from the Victoria State Emergency Service Agreement 2012 4 (the 2012 Agreement) negotiated as part of the 2016 Agreement as providing objective background facts which informs the meaning of the 2016 Agreement.

[37] The changes are:

  The 2012 Agreement did not contain a 13 week limit on the amount of time an employee was required to be rostered as DO or SBFRD but rather contained an expectation of 152 hours per 28 days;

  The 2012 Agreement had no part week roster cycle facility; and

  The 2012 Agreement did not have a clause equivalent to clause 30.7 – Duty Officer outside ordinary hours of work now found in the 2016 Agreement.

[38] The CPSU submits these changes from the 2012 Agreement are evidence that:

  The maximum of the 13 week requirement to be rostered was not intended to be exceeded;

  The inclusion of the new part week rostering, without express words that it was in addition to the 13 weeks, is indicative that rostering under clause 30.3(c)(ii) was intended to count towards the 13 weeks maximum;

  The inclusion of clause 30.7 is indicative of additional flexibility in rostering DO hours without the need to exceed the 13 week limit in clause 30.3(c)(i) for which the commuted allowance is paid.

[39] VICSES provides no submissions on this point. However, I am not convinced that the changes from the 2012 Agreement provide much assistance as to the intent of clause 30.3(c) of the 2016 Agreement.

[40] Certainly the changes made in the 2016 Agreement indicate an intention to change the way DO and SBFRD was managed but I am not convinced that it is sufficient objective evidence that the 13 week maximum period under clause 30.3(c)(i) was intended to be inclusive of any time worked under clause 30.3(c)(ii).

What employees were told in approval process

[41] CPSU relies on the evidence of Mr Matthew Taranto and Mr John Chaplin as to what was circulated to employees prior to the employee vote to approve the 2016 Agreement.

[42] Mr Chaplin gave evidence that at the time of the run-up to the approval of the 2016 Agreement and after an “in principal” agreement had been reached between the employee bargaining representatives and VICSES there were a number of information sessions conducted around the state. These provided employees with an opportunity to ask questions about the proposed 2016 Agreement.

[43] Mr Chaplin said he phoned in to the information session conducted in central region on 21 October 2016. His evidence as to what occurred in the information sessions is limited to the session he attended. His evidence is:

At the question and answer session that you attended on 21 October 2016, what issues were discussed? Look, the major I can recollect was around - one of the questions asked was was [sic] there any provisions in terms of people working above the 13 weeks, you know, as a duty officer or as on stand-by for recall duty. It was obviously something that was on people's minds because it was sort of new thinking that had been brought into these negotiations.

You mentioned a question was asked, I think. Can you remember what question was asked? Well, that was the question, what provisions - are there any provisions for people who work outside the 13 weeks.

Can you remember which of the bargaining representatives were present at the meeting that you telephoned into? From my understanding, I think it was Katrina Bahen and Wayne Townsend - I believe were the two reps.

You mentioned that a question was asked about the 13 week limit? Yes.

Can you remember what the response was? That there were no provisions to work outside the 13 weeks. There was a box put around the 13 weeks and no provisions to work outside that. 5

[44] Under cross-examination Mr Chaplin agreed that clause 30.3(c)(i) relates to the requirement to be rostered for a minimum of 11 weeks and maximum of 13 weeks but he understood that the ability to be rostered by agreement under clause 30.3(c)(ii) had to be read in conjunction with clause 30.3(c)(i). He further agreed that the discussion around the 13 week period at the information session he attended was general with no specific mention of a cap although he did give evidence that they (the bargaining representatives) said that there was no provisions to work outside the 13 week cap6. He agreed that there was no discussion at the information session he attended that suggested time worked under clause 30.3(c)(ii) counted towards the 13 week cap in clause 30.3(c)(i).

[45] Mr Matthew Taranto also gave evidence for CPSU. He attached to his witness statement a circular provided to all employees titled “Summary of proposed Victoria State Emergency Service Enterprise Agreement 2016” dated 5 October 20167 signed off by Ms Katrina Bahen, Director Human resources for VICSES.

[46] Mr Taranto gave evidence that he attended two information sessions conducted for employees – one on 20 October 2016 for state operations staff at VHO and a further session for central region.

[47] At the first of these sessions he says it was “made quite clear during this meeting that the 13 week maximum was a ‘non-negotiable’ requirement due in part to limit fatigue issues around commuted staff working extended hours.”8 Further, his evidence is that he asked why there was no penalty in the agreement if a staff member was rostered in excess of 13 weeks. He said that “[e]veryone on the negotiating teams had a shared view that there would be no need for this as the clause is clear that this cannot occur.” 9 He said no one indicated that in circumstances you could be more than 13 weeks. Similar questions were asked and answers given at the second session he attended.

[48] Mr Taranto’s evidence is that Ms Bahen from VICSES was the person who said in the briefings that employees could not be rostered in excess of 13 weeks. He also said that Mr Wayne Townsend from the CPSU who was part of the bargaining committee was “very strong” in his words and was not contradicted by Ms Bahen. He did agree however that Ms Bahen did not say that any time worked under clause 30.3(c)(ii) counted towards the maximum 13 weeks in clause 30.3(c)(i).

[49] Ms Bahen gave evidence that she was involved in negotiations for the 2016 Agreement and that she was present at the employee briefings prior to the approval of the 2016 Agreement.

[50] Her evidence is that VICSES did not say at the briefings that there would be a cap on the total number of hours an employee could be rostered as DO or SBFRD. Ms Bahen said that, in the employee briefings, she explained that “clause 30.3 was in relation to VICSES ability to roster employees on as a duty officer for maximum of 13 weeks and receive the commuted allowance” and that employees “were not told that they would never be asked to work in excess of 13 weeks as duty officer or SBFRD.”10

Subsequent conduct

[51] CPSU relies on a number of documents produced by VICSES following from the approval of the 2016 Agreement to support its argument that clause 30.3(c)(i) places a cap on the amount of time a commuted allowance employee can be rostered as DO or SBFRD in return for the allowance. It relies, in particular, on:

(i) An email of 14 February 2017 from Trevor White, Chief Operating Officer in relation vehicle usage for employee on commuted allowance that states, part:

As part of the new four year Enterprise Agreement, VICSES management and CPSU agreed to limit the number of weeks a VICSES officer could be rostered for duty, from potentially 46 weeks to a maximum of 13 weeks per year.11

[underlining added]

(ii) Minutes of the EBA 2016 Implementation Committee of 10 March 2017 which indicates that:

Chief Officer discussed principles for ensuring the EBA commitment of a maximum of 13 weeks Duty Officer and standby officer was meet [sic].12

(iii) Minutes of the EBA 2016 Implementation Meeting of 24 March 2017 where Trevor White (Chief Operating Officer) is minuted as saying that:

[F]rom an operation point of view we have to work to the EB however from time-to-time it may be necessary to have flexibility.13

(iv) The 2016 EBA Rostering Principles draft dated 23 March 2018 which states:

With 4 staff allocated to undertake the Duty Officer roster cycle in each region, other than Mid-West and State HQ, working 12 cycles each will provide for 48 weeks of coverage for a required coverage of 52 weeks. Where required, other approved staff will supplement the operational requirements.14

…a preliminary rostering model [has been developed] based on each staff member receiving commuted allowance, undertaking 12 rostered duty officer rotations. This provides spare capacity…to cover vacancies, illness and readiness for operations as determined…15

[underlining added]

(v) The “Hours of work and relevant allowances” procedure which states, under definitions:

The Commuted Allowance is in compensation for:

  The requirement to be rostered each financial year as Duty Officer…or standing by for recall to duty for a minimum of 11 weeks and a maximum of 13 weeks…or the equivalent number of hours in any part week roster cycles.16

[52] CPSU says that these documents reinforce that the commuted allowance was to compensate employees for being rostered for a maximum of 13 weeks per year. Further, the rostering model was developed in a way that provided spare capacity by only actually rostering eligible employees for 12 weeks hence providing scope within the 13 week cap to cover vacancies, illness and readiness – that is the type of matters contemplated in clause 30.3(c)(ii). Further, the rostering principles document does not suggest that any additional requirements will be met through the use of clause 30.3(c)(ii) but rather through supplementation but other approved staff.

[53] VICSES argues that the documents do not evidence any intention by VICSES to not be able to roster employees for periods in excess of 13 weeks and any reading of the documents as such would be inconsistent with the 2012 Agreement. Further, it says that the evidence of Ms Bahen is that during negotiations for the 2016 Agreement, while potential rostering as DO and SBFRD had reduced to a maximum of 13 weeks, the requirement of VICSES for flexibility had not changed.

[54] VICSES submits that the material relied on by CPSU does not demonstrate any mutuality of intent of the parties as to how the 2016 Agreement should operate.

[55] For this reason it submits that the material is inadmissible as evidence of surrounding circumstances.

Consideration

[56] In reaching my conclusion with respect to the subsequent conduct of the parties after the 2016 Agreement was made I have taken into account the following principle from Berri:

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

[57] In particular I have taken into account whether the post agreement conduct described above shows some “meeting of the minds” of the parties. In doing so that “meeting of the minds” needs to go beyond what CPSU and VICSES management representatives may have said to each other but what was put to the employees as the manifestation of the 2016 Agreement.

[58] I am not convinced that the “EBA 2016 Implementation Meeting” minutes of 24 March 2017 provides any guidance as to what the meeting of the minds of the negotiating parties may have been with regard to the relationship between clause 30.3(c)(ii) and the maximum specified roster period of 13 weeks in clause 30.3(c)(i). These minutes refer to the limit on the ability of VICSES to roster commuted allowance employees and not the maximum period that may be rostered or what the commuted allowance compensates for. They do not refer to the ability of an employee to be requested and to agree to work additional rosters nor how these provisions might apply in the context of the 13 week maximum. They do not go explicitly to the subject of clause 30.3(c)(ii), that is, what is to occur “to meet local requirements such as short term absences”. This, to an extent, further reinforces the general lack of attention given to clause 30.3(c)(ii) in the 2016 Agreement. There is no obvious “clear and mutual subjective intention”17 apparent in these documents.

[59] The intention of VICSES, as expressed by Ms Bahen, is not to the point. That is her subjective view of what was sought to be achieved or was in the mind of VICSES. There is no evidence that this was a shared understanding either in negotiations or through implementation committee meetings.

[60] However, the draft rostering principals (which I understand are unchanged in their implementation) are in a different category. These principles were the subject of discussion between the negotiating parties and were distributed to employees. It is on the basis of these documents that rosters are developed. There is no evidence that they were not commonly agreed. The principles go directly to the total availability of an employee in receipt of the commuted allowance. The principles are not contrary to clause 30.3(c). The principles are clear that an employee will be rostered for 12 weeks (it is accepted this is done annually in advance) leaving one week spare capacity to cover vacancies, illness and readiness for operations. This is also the language of clause 30.3(c)(ii): “a part duty roster cycle…will be worked to meet local requirements such as short term staff absences or operational readiness requirements.” This supports a conclusion that time rostered under clause 30.3(c)(ii) counts to the maximum 13 week roster period for which the commuted allowance compensates in clause 30.3(c)(i).

[61] This document was distributed to all employees affected by the commuted allowance payment. It was not subject to dispute. In this respect I agree with CPSU that it goes beyond an exchange of views between a limited number of people. It was a document once completed intended to be circulated, considered and applied in the workplace. It is, to this extent, a matter in common contemplation. It is conduct that comes within principle 15 in Berri. I am satisfied therefore that it is reasonable to take these rostering principles into account in circumstances where the provisions of clause 30.3(c) were new to the 2016 Agreement and where it was intended that through these principles clause 30.3(c) be given effect.

Conclusion

[62] I am therefore satisfied that, taking into account the facts established through the post agreement conduct of the parties, it is intended that time worked by a rostered duty officer or a standing-by for recall to duty employee in receipt of commuted allowance in accordance with clause 30.3(c)(ii) is included in the 13 week maximum that a commuted allowance employee can be required to be rostered under clause 30.3(c)(i).

[63] This does not remove the flexibility required by VICSES – all of those employees on the roster are only rostered for 12 weeks of the year and each has a further week which may be used to achieve the flexibility required by clause 30.3(c)(ii). Further flexibility is available to VICSES through the operation of higher duties provisions as described in proceedings, through the use of clause 30.8 or where a declared event occurs. I have made no finding that would restrict the capacity of VICSES to roster an employee in receipt of the commuted allowance who had only completed 12 weeks as DO or SBFRD for a further week. There is nothing apparent before me that says that such an employee can only complete the 13th week by agreement although I make no specific finding as this was not a matter subject to this dispute.

[64] To the extent CPSU says that the 13 week limit was imposed to deal with concerns of fatigue I am not sure it has secured this objective. It may be that operations staff will seek to do more DO through the provisions of clause 30.8 because of the additional remuneration attached to it. This may have perverse consequences but is not something I need to decide.

[65] I would further add that it is my view that it is now up to the parties to meet and determine the basis for payment for employees who may have been rostered in excess of the 13 week maximum period for which the commuted allowance is payable.

Seal of the Fair Work Commission with member's signtaure.

COMMISSIONER

Appearances:

D. Murphy for the Applicant.

C. Molnar for the Respondent.

Hearing details:

2018.

Melbourne:

November 12.

Printed by authority of the Commonwealth Government Printer

<PR703738>

 1   AE422744.

2 Exhibit CPSU3.

3 [2017] FWCFB 3005.

 4   AE401897.

 5   Transcript, PN134-140.

6 Transcript PN187.

7 Exhibit CPSU2, attachment A2.

8 Exhibit CPSU2, paragraph 11.

 9   Exhibit CPSU2, paragraph 12.

10 Exhibit SES1, paragraphs 68-69.

11 Exhibit CPSU2, attachment A5.

12 Exhibit CPSU2, attachment A8, item 7.

13 Exhibit CPSU2, attachment A10, item 7.

14 Exhibit CPSU2, attachment A11, p. 2 – Roster Cycle Planning Scenarios Regional Duty Officer (RDO).

15 Exhibit CPSU2, attachment A11, p. 3 – Preliminary Rostering Model.

16 Exhibit CPSU2, attachment A14, p. 3, section 7.

17 Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 at 304 as cited in Berri at [105].