| [2021] FWC 3681 [Note: An appeal pursuant to s.604 (C2021/4498) was lodged against this decision - refer to Full Bench decision dated 28 October 2021 [[2021] FWCFB 6037] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.217—Enterprise agreement
s.739—Dispute resolution
EnergyAustralia Yallourn Pty Ltd
(AG2020/1734)
and
Construction, Forestry, Maritime, Mining and Energy Union
v
EnergyAustralia Yallourn Pty Ltd
(C2020/4793)
DEPUTY PRESIDENT MANSINI |
MELBOURNE, 20 JULY 2021 |
Variation and dispute applications in relation to the EnergyAustralia Yallourn Enterprise Agreement 2020.
[1] This decision concerns two applications about the same public holidays provision at clause 13 of the EnergyAustralia Yallourn Enterprise Agreement 2020 (Agreement):
• the first, made by EnergyAustralia Yallourn Pty Ltd (Company) for variation of clause 13.2 of the Agreement under s.217 of the Fair Work Act 2009 (Cth) (Act) (Variation Application); 1
• the second, made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for the Commission to deal with a dispute about clause 13.2 in accordance with the dispute resolution process at clause 29 of the Agreement and s.739 of the Act (Dispute Application). 2
[2] Both applications are concerned with the entitlement of a day work employee to the application of a substitute day off for public holidays that occur on a weekend.
[3] Essentially: the Company contends that the public holiday provision of the Agreement is ambiguous or uncertain and seeks an order that certain words should be inserted in clause 13.2 by way of variation; whereas the CFMMEU contends that there is no ambiguity or uncertainty, the Commission should not be satisfied to order a variation, and its dispute would be resolved by determination of a particular question. The Company proposed an alternate question.
[4] The Agreement covers (and is also expressed as applying to):
a) The Company and/or any successor(s); 3
b) All employees of the Company who are members of, or who are eligible to be members of, any of the organisations of employees party to the Agreement and who are employed to work in classifications in Appendix 1 (Employees). 4
[5] The approval decision notes that the Agreement covers the following unions, also named in the application clause of the Agreement and, together with the Company, defined as “Parties” to the Agreement:
a) CFMMEU;
b) “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);
c) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);
d) Australian Municipal, Administrative, Clerical and Services Union (ASU);
e) The Australian Workers’ Union (AWU),
(together, the Unions). 5
[6] The Agreement was approved on 8 May 2020. It commenced operating on 15 May 2020 and its nominal expiry date is 1 February 2023.
[7] By clause 2 of the Agreement, it expressly operates to the exclusion of all other industrial instruments which would otherwise apply to the Employees. It replaced the EnergyAustralia Yallourn Enterprise Agreement 2017 (2017 Agreement) and is the most recent in a relatively long line of industrial instruments.
[8] Clause 2 also provides that the Agreement supplements and contains terms ancillary and/or incidental to the National Employment Standards in the Act (NES) but, where there is an inconsistency between the Agreement and the NES provides a greater benefit, the NES provision applies to the extent of the inconsistency. Here it is also said to settle “all the claims” of the Company, the Unions and the Employees in respect of terms and conditions of employment for its duration. 6
[9] Clause 13 – Public Holidays is subject of the applications (extracted in full at Annexure A).
[10] By its Variation Application, the Company seeks an order that subclause 13.2 of the Agreement is varied by inserting the following underlined words, effective from the date of commencement of the Agreement:
For day work Employees only, a substitute day off will be applied when a public holiday occurs on a weekend if a substitute day has been declared in the Government Gazette. The substitute day will normally be observed on the day declared in the Government Gazette or as otherwise agreed by the Parties. 7
[11] By its Dispute Application, the CFMMEU asks the Commission to resolve the dispute by determining the following question:
For the purposes of clause 13.2 of the EnergyAustralia Yallourn Enterprise Agreement 2020, in what circumstances is a day work Employee entitled to a substitute day off when a public holiday occurs on a weekend?
(CFMMEU’s Question) 8
[12] The Company contended for an alternate question to be determined:
Is the meaning of clauses 13.1 and 13.2 of the EnergyAustralia Yallourn Enterprise Agreement 2020, as varied by the Commission pursuant to s 217 if at all, that day workers are entitled to a substitute day only when both of the following conditions are satisfied:
a. a public holiday as defined in clause 13.1 occurs on a weekend; and
b. a substitute day for that public holiday is declared by the Victorian Government.
(the Company’s Question) 9
[13] As a preliminary matter, it was determined that the matter proceed on the basis of the CFMMEU’s Question and that this did not preclude the Company from addressing the Commission about its (narrower) question.
[14] The following witnesses gave evidence to the Commission:
a) Mr Peter Chapple, former employee of the Company (and its predecessor, the State Electricity Commission) and retired since July 2017;
b) Mr Branko Alexander Bukarica, National Legal Director for the Mining and Energy Division of the CFMMEU;
c) Mr Geoffrey Wayne Dyke, Secretary of the Victorian District Branch of the CFMMEU, for the CFMMEU;
d) Mr Geoffrey Thomas Aitken, Organiser with the Victorian District Branch of the CFMMEU (Lodge President from 2012 to 2018);
e) Mr Stephen Dodd, organiser for the AMWU.
[15] For completeness, a Ms Mitchell and a Mr Hardy filed statements but the CFMMEU ultimately did not rely upon them and I have not had regard to this material. 10
[16] The evidence before the Commission is summarised in the following paragraphs, and is not contentious except where indicated.
[17] The Company operates a coal mine and power station in Yallourn, in the state of Victoria. The power station operates 24 hours a day, 365 days a year.
[18] Under the Agreement, Employees work either as day workers (a 9 day fortnight Monday to Friday with every second Monday as an RDO) or as shift workers. 11 Maintenance employees are day workers (day work Employees) and operators are shift workers (shift work Employees).12
[19] In 2020, the ANZAC day public holiday fell on a Saturday and the day work Employees did not receive a substitute day. Mr Dyke first became aware of this when the CFMMEU was approached by some of its members following 25 April 2020. 13
[20] On 30 April 2020, Mr Dyke first raised alleged non-compliance with clause 13 with the Company, under the 2017 Agreement and specifically in relation to ANZAC Day. 14 On 15 May 2020, the Agreement commenced operation. On 19 May 2020 the CFMMEU, not being satisfied with the Company’s response, applied for the Commission’s assistance to resolve the dispute it had raised under the 2017 Agreement. On 11 June 2020, that application was withdrawn.15
[21] Also on 11 June 2020, alleged non-compliance with clause 13 was raised by Mr Dyke with the Company; this time under the Agreement and in relation to public holidays falling on weekends (that correspondence did not specifically confine the issue to ANZAC Day). 16
[22] On 18 June 2020, the Company filed the Variation Application. On 19 June 2020, the CFMMEU filed the Dispute Application.
[23] It is common ground that clauses 13.1 and 13.2 of the Agreement first appeared in the EnergyAustralia Yallourn Enterprise Agreement 2013 (2013 Agreement) and were then replicated in identical form in the 2017 Agreement and the Agreement. 17
[24] Mr Dyke did not raise public holiday substitution for day workers in the negotiations for the Agreement or the 2017 Agreement; nor did Mr Aitken or other union officials raise it with Mr Dyke at those times. 18 There is no evidence before the Commission that the issue was otherwise raised in the negotiations for the Agreement or the 2017 Agreement. There is no evidence that these provisions were explained to the relevant employees in requesting their approval of the Agreement or the 2017 Agreement.
[25] The evidence about the negotiations for the 2013 Agreement is summarised in the following paragraphs.
[26] Of the witnesses that gave evidence to the Commission, Mr Chapple, Mr Dodd and Mr Aitken were involved throughout the negotiations for the 2013 Agreement, and Mr Bukarica became involved in the latter part of the negotiations. 19
[27] It was not contentious that the AMWU, the CEPU, the AWU and the ASU represented by Mr Dodd, Mr Mooney, Mr Wright and Mr Sharp were bargaining representatives of maintenance workers (day work Employees) employed by the Company at Yallourn during these negotiations. 20 As to the role of the Construction, Forestry, Mining and Energy Union, as it then was (CFMEU): Mr Dyke (who was not involved in the 2013 negotiations) believed that the CFMEU did not have any members who were day workers during the negotiations for the 2013 Agreement;21 Mr Dodd (of the AMWU) said he thought the bulk of the CFMEU members were operators but there were some others that were CFMEU members, he could not say whether they had maintenance worker members in the 2013 negotiations;22 and Mr Aitken (then Lodge President of the CFMEU) recalled that initially there were no CFMEU members but by the end of the (bargaining) dispute and in the 2013 negotiations, there were some 3 or 4 maintenance workers who had become members of the CFMEU.23
[28] One of the claims for day work Employees, and according to Mr Dodd one of the main issues for the AMWU’s members in the 2013 negotiations, was a substitute day for Easter Saturday on Easter Tuesday. 24 Mr Chapple recalled that the specific claim by the maintenance unions (not the CFMEU) was for the Easter Tuesday substitute day for Easter Saturday for day work Employees.25
[29] The CFMEU’s initial log of claims or “starting position” in bargaining for what would become the 2013 Agreement included a different form of words regarding the public holidays provision to that in the 2008 Agreement. The Company responded that its “starting position” in bargaining regarding public holidays was the same wording as clause 17.6 of the 2008 Agreement. 26 The clauses that were proposed as respective “starting positions” are extracted at Annexure B – Evolution of clauses 13.1 and 13.2 in negotiations for the 2013 Agreement. Mr Chapple and Mr Aitken both said there was “not much” discussion about substitute days in their negotiations for the 2013 Agreement. Mr Aitken did not recall the issue of substitute public holidays being a “major issue” in the bargaining. According to Mr Chapple, Mr Aitken was not representing the principal organisations involved in the discussions which led to in-principle agreement on this claim because it was not part of the CFMEU’s log of claims.27
[30] At some point prior to March 2013, there was in principle agreement reached between the Company and the maintenance unions to include Easter Tuesday as a substitute for day workers. 28 A record of 4 March 2013 reflected such agreement, specific to Easter Tuesday and using the phrase “catch all” which Mr Chapple said was a reference to the intended simplification of the very detailed drafting in the 2008 Agreement.29 In March 2013, the Company made an offer to the unions which attached a draft agreement. The Company’s letter of offer acknowledged this was an alternative to the unions’ log of claims and draft agreement and was the Company’s view of the best way to give effect to its offer although it was open to “wordsmithing”.30 The relevant clause from that offer is extracted at Annexure B.31 That offer was subsequently communicated to employees in a bargaining update which said:
“Tuesday after Easter Monday will be recognised as a Public Holiday in substitute for Easter Saturday for day workers. (New Clause).”
and this offer was rejected by the CFMEU. 32
[31] Mr Chapple recalled that during intensive discussions at the CFMEU offices in early April 2013 it was Mr Hardy, a CFMEU bargaining representative (and then Secretary of the Victorian District of the Mining and Energy Division), who suggested that the CFMEU’s public holidays clause be adopted as a “non-controversial amendment” but with an amendment to pick up the agreement in principle regarding Easter Tuesday. 33 Mr Chapple recalled “Our focus was on reflecting the Easter Tuesday substitute day” and there was discussion about the provision of a substitute day to be changed by agreement, which he said was “in relation to the fact that the substitute day declared in the Government Gazette might not be the most convenient day for EnergyAustralia or the employees”.34
[32] Mr Chapple also recalled that, with one exception, there was never any suggestion in the bargaining meetings that he attended that the effect of the proposed clause would be to provide a substitute for public holidays that occurred on a weekend if not gazetted by the Government. The exception, he said, was Easter Tuesday being a substitute for Easter Saturday. 35 Mr Dodd did not recall there being discussion about an ANZAC Day substitute during the negotiations for the 2013 Agreement, the only thing he could remember about public holidays that was discussed in those negotiations was the claim for an Easter Tuesday substitute for Easter Saturday.36 Mr Aitken also did not recall any discussion about the Easter Tuesday substitute being an example of a broader claim for a substitute day for day workers any time a public holiday fell on a weekend or any suggestion that the effect of the maintenance unions’ claim would be to provide a substitute day for day workers any time a public holiday fell on a weekend.37
[33] From 8 to 12 April 2013, there were 5 days of intensive negotiations between the Company and the CFMEU. The form of words that was being discussed as at 11 April 2013 is at Annexure B and Mr Chapple said this included Mr Hardy’s words plus an addition to reflect the agreement in relation to Easter Tuesday as a substitute day for Easter Saturday. 38
[34] By 12 April 2013, Mr Chapple considered that bargaining had reached an impasse and the parties were unlikely to reach agreement. 39
[35] On 24 April 2013, the Company circulated its proposed agreement along with a letter and explanatory document. Mr Chapple’s evidence was that the proposed public holidays provision reflected the 2008 Agreement with the new content marked up. 40 The explanatory document explained the proposed changes to the 2008 Agreement in the proposed agreement that employees were being requested to vote on at that time, and relevantly provided:
“This clause has been amended to provided that for any day workers the Tuesday after Easter Monday will be recognised as a Public Holiday in substitute for Easter Saturday.” 41
(The relevant clause from the proposed agreement that was put to a vote in May 2013 is at Annexure B. 42)
[36] The CFMEU rejected the first proposed agreement that was put to a vote on 2 May 2013, campaigned for a “no vote” and it was voted down. 43 On 23 May 2013, the Company proposed to negotiate a separate enterprise agreement with the maintenance unions but also extended the invitation to the CFMEU as a bargaining representative of those of its members who would be covered by a separate maintenance agreement.44
[37] Between June and September 2013, the bargaining became difficult involving various legal proceedings and the Company taking industrial action in the form of a lock out of some employees. 45 In this period, after the first proposed agreement was voted down in May 2013, the CFMEU negotiated directly with the Company, and in those direct discussions did not press the maintenance unions’ claim for a substitute for Easter Saturday for day workers. The maintenance unions were not part of the negotiation meetings between the Company and the CFMEU between May and October 2013.46 The CFMEU’s focus was on issues to do with the operators at the site, according to Mr Bukarica, primarily because they were the employees who were locked out and “we had to fix that dispute”.47 The CFMEU was not addressing the public holidays provisions in these negotiations because it did not concern the operators.48
[38] Mr Chapple recalled that, when bargaining resumed after a period of industrial action, the drafting of what would become clauses 13.1 and 13.2 of the 2013 Agreement largely reverted to the approach taken in the offer that had been put to a vote in May 2013 but with an additional sentence added:
“If day work employees are required to work on Easter Saturday they will attract normal day rates.”
(The clause from the proposed agreement as at 12 August 2013 is at Annexure B. 49)
[39] Mr Chapple also recalled that the Company’s position after the lengthy industrial action was that it could no longer afford to agree to some of the claims previously agreed in principle with the maintenance unions, some of the “more minor matters” such as the claim for Easter Tuesday were now off the table. 50 Mr Aitken was not there every day but did not recall there being a suggestion in the negotiations that led to the proposed agreement being put to a vote in October 2013 that there would be a substitute day for Easter Saturday for day workers, or that there would be a substitute for ANZAC Day, unless it was gazetted.51
[40] Once a deal was effectively done in principle between the Company and the CFMEU, Mr Chapple emailed the maintenance unions, on 25 September 2013. 52 The email said that negotiations with the CFMEU had concluded, attached the draft agreement that would be put to the CFMEU members for endorsement and stated that the Company “has withdrawn any previous offers made and now invite the Maintenance Unions to meet with the Company to discuss the attached with a view to reach an agreement”. When taken to the document in cross examination, Mr Dodd accepted that it was “pretty clear” from that email that previous offers made had now been withdrawn and that which had previously been agreed was now “off the table” and accepted the proposition that the Easter Tuesday substitute claim was “lost”.53 However, when put to him that this was in contradiction to his written evidence that the CFMEU’s words meant that day workers were provided with a substitute day for all public holidays that fell on a weekend,54 Mr Dodd did not accept this, saying he would have liked to see the “Easter Tuesday” words in the agreement, he thought the guys were getting the public holiday, then said that he had become confused and sought to refer to the agreement.55 After being shown the agreement, Mr Dodd accepted that the words about Easter Tuesday were not in the document, said he was not sure what he said 7 years ago in those negotiations and maintained his belief that the clause gives day work Employees an entitlement to Easter Tuesday.56 The clause from the proposed agreement as at 25 September 2013 is in the same form as that which was ultimately approved and became the 2013 Agreement (see Annexure B).57
[41] On 18 October 2013, the Company circulated a letter and an explanatory statement which explained “in summary form” the proposed changes to the 2008 Agreement in the proposed agreement that employees were being requested to vote on. The letter said (among other things) that the proposed agreement reflects the “agreement-in-principle” reached between the Company and the CFMEU on Friday 27 September 2013; and the ASU, ETU, AMWU and AWU on Wednesday 2 October 2013. This explanatory statement said only the following in relation to the “Public holidays” provision:
“45. This provision has been amended to exclude shift workers from the requirement to provide a reasonable excuse or have consent from the Company to receive payment for a public holiday if absent from their shift before or after the public holiday. This reflects the current practice.” 58
[42] The explanatory materials in evidence do not explain the withdrawal of the in-principle agreement to the Easter Tuesday claim or the other changes to the 2008 Agreement in terms of the drafting of the public holidays provision. The clause from the proposed agreement as at 18 October 2013 was in identical form to that which was ultimately approved and became the 2013 Agreement. 59
[43] The 2013 Agreement was approved by a majority of the employees covered by it in October 2013. Mr Dodd’s evidence was that he was not sure all of the AMWU’s members would have voted for it and was “fairly certain that we (the maintenance unions) wouldn’t have supported it” but it was probably immaterial because the maintenance unions did not have the numbers to influence the outcome then. 60 The statutory declaration submitted to the Commission by the Company on application for approval of the 2013 Agreement is in evidence and does not indicate that clause 13 was raised as a more (or less) beneficial term; nor does the CFMEU’s declaration indicate that it disagreed.61
[44] The National Employment Standards in the Act relevantly provide for an entitlement to be absent (subject to a reasonable request to work), and to payment for absence at the employee’s base rate of pay for an employee’s ordinary hours of work on, on a public holiday (ss.114 and 116). “Public holiday” is defined at s.115 as follows:
The public holidays
(1) The following are public holidays :
(i) 1 January (New Year's Day);
(ii) 26 January (Australia Day);
(iii) Good Friday;
(iv) Easter Monday;
(v) 25 April (Anzac Day);
(vi) the Queen's birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);
(vii) 25 December (Christmas Day);
(viii) 26 December (Boxing Day);
(b) any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday.
Substituted public holidays under State or Territory laws
(2) If, under (or in accordance with a procedure under) a law of a State or Territory, a day or part-day is substituted for a day or part-day that would otherwise be a public holiday because of subsection (1), then the substituted day or part-day is the public holiday .
Substituted public holidays under modern awards and enterprise agreements
(3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2).
Substituted public holidays for award/agreement free employees
(4) An employer and an award/agreement free employee may agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2).
Note: This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public holidays (see paragraph 27(2)(j)).
[45] Additional statutory context in the State of Victoria is:
a) New Year’s Day, Australia Day, Christmas Day and Boxing Day are all days which have traditionally had a substitute day declared under the Public Holidays Act 1993 (Vic) when they fall on a weekend. 62 Substitute days that were gazetted for each of these public holidays are detailed (dating back to 1999) in the materials before the Commission and are not repeated here.
b) ANZAC Day is fixed on 25 April each year and, whilst the Victorian Government has the power to declare substitute holidays it has historically not proclaimed a substitute holiday for ANZAC Day. 63 Exceptions to the historical approach occurred in 2010 (when ANZAC Day fell on a Sunday) and in 2011 (when ANZAC Day fell on Easter Monday), with the Victorian Government declaring a substitute day in each case.64
c) No substitute day was declared by the Victorian Government for ANZAC Day 2020, which fell on a Saturday.
d) No substitute day was declared by the Victorian Government for ANZAC Day 2021, which fell on a Sunday.
[46] The history of industrial instruments and industrial context at Yallourn that is before the Commission is as follows:
a) The Victorian Electricity Industry (Mining and Energy Workers) Award 1998 provided for substitute public holidays for Christmas Day, Boxing Day, New Year’s Day and Australia Day in the event of those public holidays falling on a weekend.
b) In 2001, a s.170 MX Award was made by the Australian Industrial Relations Commission following termination of bargaining and provided for public holidays at clauses 17.6 and 17.7. The relevant clauses are at Annexure C – Historical provisions in industrial instruments previously applicable at Yallourn. During the life of the s.170MX Award, ANZAC Day fell on a Sunday in 2004 and a substitute day was not provided to the Company’s day workers at that time. 65
c) Under the 2004 Certified Agreement, public holidays were provided at clauses 15.6 and 15.7. The relevant clauses are at Annexure C. During the life of the 2004 Certified Agreement, there was a dispute concerning Easter Saturday and day workers which was resolved in conciliation before the Commission. The Company’s predecessor entity (TRUenergy Yallourn Proprietary Limited) agreed to pay an additional public holiday credit to the employee annual leave balances and it was agreed that the replacement to the 2004 Agreement would be re-worded to provide clarity as to how the Easter Saturday public holiday would be applied to day workers in future. 66
d) Under the 2008 Agreement, public holidays were provided for at clauses 17.6 and 17.7. Clause 44 provided for certain substitute days, specifically for Christmas Day, Boxing Day, Australia Day and New Year’s Day. The relevant clauses are at Annexure C. During the life of the 2008 Agreement:
• ANZAC day fell on a Saturday in 2009 and a substitute day was not provided to the Company’s day workers at that time. 67
• ANZAC day fell on a Sunday in 2010 and on Easter Monday in 2011 and, in both cases, a substitute day was declared by the Victorian Government. The Company provided substitute days to day workers for ANZAC day in 2010 and 2011. 68
e) At the time the 2013 Agreement was being negotiated, Mr Dodd was aware that a substitute day for Easter Saturday was not being paid by the Company at Yallourn. 69 As outlined above, this was a key claim of the maintenance unions in the 2013 negotiations and the words of that clause (as they appear in the Agreement) are now in issue in these applications.
f) Since the 2013 Agreement was in operation, and during the operation of the identical provisions in the subsequent 2017 Agreement and the Agreement:
• A substitute day was gazetted for Christmas Day which fell on a Sunday in 2016, such that Monday 26 and Tuesday 27 December 2016 were both public holidays. The Company’s day workers were provided public holiday entitlements on those days. 70
• Additional public holidays were gazetted for the day before AFL grand final day in 2015 and 2016. The Company’s day workers were provided with public holiday entitlements for those days. 71
• Easter Sunday was gazetted as a public holiday in 2016 and 2017 and was treated as a public holiday by the Company. 72
• ANZAC Day fell on a weekend in 2015. The Company’s day workers were not provided a substitute day that occasion and this was not raised by the union(s) at the time. 73
• Easter Saturday has not been raised at any time prior to this dispute. The Company’s day work Employees have not been provided a substitute day for Easter Saturday and this has not been raised by the union(s) in that time. 74
[47] The wording of clauses 13.1 and 13.2 of the Agreement is identical to that at clauses 18.1 and 18.2 of the Loy Yang B Enterprise Agreement 2018. This is a separate enterprise agreement which does not apply to the Company or its Employees; and is noted as covering the ASU and the CFMMEU. 75
[48] Mr Chapple recalled in evidence that Mr Hardy expressed the opinion during the 2013 negotiations that terms and conditions of employment at electricity generators across the Latrobe Valley should be the same for all employers, and that the terms and conditions at Yallourn were behind other sites, but did not recall Mr Hardy raising how public holidays were dealt with at Loy Yang A or Loy Yang B. 76
[49] Mr Dyke said the same clause is applied at Loy Yang B (under a separate enterprise agreement, made with a separate entity) such that day work employees have received, and continue to receive, substitute days for public holidays whether there is a Government gazetted substitute or not - and he had no reason to believe otherwise at Yallourn prior to the issue being raised with him following ANZAC Day in late April 2020. 77 Mr Dyke also acknowledged in evidence that his view about clause 13 of the Agreement was based on his interpretation of the words as they are written, not knowing how the predecessor agreements had been applied since 2013 and not knowing what was said or done in the 2013 negotiations (because he was not there).78
[50] In performing its functions and exercising its powers under the Act, the Commission is required to act in a manner that is fair and just; quick, informal and avoids unnecessary technicalities; open and transparent; and promotes harmonious and cooperative workplace relations.
[51] The applications were filed one day apart. The Variation Application was filed first in time by the Company, however the preliminary steps to the Dispute Application were notified first in time by the CFMMEU. For efficiency, it was jointly requested that evidence be received in relation to both applications. 79 The applications were heard concurrently, over 3 days on 17 November 2020, 8 February and 10 March 2021, with closing submissions filed on 24 February, 3 and 10 March 2021.
[52] Both applicants expressed strong views that their application be determined first. Detailed submissions were made on this issue and are not repeated here. Having regard to all of the circumstances and the precedents drawn to the Commission’s attention in this respect, I consider it is appropriate to determine the Variation Application first. The legislature has provided a power for the Commission to vary an agreement to remove an ambiguity or uncertainty, and it is appropriate that such power be exercised first before proceeding to make a determination of rights and entitlements by construing a clause which may be affected by ambiguity or uncertainty. I am satisfied that to do otherwise may produce an unjust result.
[53] For completeness, I note that each of the Unions (as earlier defined) were party to the Variation Application and were invited to make submissions in relation to both applications. Initially, each of the AMWU, the AWU, the ASU and the CEPU indicated their support but there was no formal application to be joined as a party to the CFMMEU’s dispute application. 80 Materials were filed by the Company and the CFMMEU, the CFMMEU’s materials included one AMWU witness. At the commencement of the hearing, the CFMMEU confirmed that the AMWU had requested and they had agreed to represent the AMWU in “both matters”.81
[54] The objects of the Act relevantly include to achieve productivity and fairness through an emphasis on enterprise-level collective bargaining and providing laws that are fair to working Australians, flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity. 82
[55] Division 7 of Part 2-4 provides for an enterprise agreement to be varied. The objects of Part 2-4 are to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits and for the Commission to facilitate the making of enterprise agreements. 83
[56] An enterprise agreement is a “statutory artefact”, not able to be varied other than in compliance with the specific provisions of Division 7. 84 Section 217 is found in Subdivision B “Variations of enterprise agreements where there is ambiguity, uncertainty or discrimination”.
[57] The Commission’s consideration of an application under s.217 involves two steps:
a) first, there must be an identification of whether there is an ambiguity or uncertainty in the Agreement; and
b) only if an ambiguity or uncertainty is identified must the Commission then consider whether to exercise its discretion to remove the ambiguity or uncertainty.
[58] In summary, the first task is to make an objective judgment as to whether the relevant provision(s) of the enterprise agreement are ambiguous or uncertain. Ambiguity exists when a provision in an enterprise agreement is capable of more than one meaning; whereas uncertainty may exist even where the terms are not ambiguous, and may arise from the application of the unambiguous terms to a given set of circumstances. 85 The mere existence of rival contentions is not a sufficient basis to conclude that there is ambiguity or uncertainty; the competing contentions should have merit.86 In Bianco Walling a Full Federal Court rejected the proposition that an examination of context and extrinsic material was not permissible until an ambiguity was first found to exist – the Court in that case held that the Commission is not constrained by agreement interpretation principles and evidence of surrounding circumstances including common intention or objectively established past or current practice may be regarded in assessing whether an ambiguity or uncertainty exists.87 Further, it endorsed the reasoning in Tenix that “the [FWC] will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention”.88
[59] If that objective judgment is in the affirmative, then the Commission may exercise its discretion to decide whether or not the agreement should be varied to remove the ambiguity or uncertainty. The discretion under s.217 is to be exercised having regard to the evident statutory purpose of the provision, read in the context of Part 2-4 and the Act as a whole, and taking into account the circumstances of the relevant application. The discretion afforded by the statute is to “remove ambiguity or uncertainty”, as distinct from giving effect to a new and substantive change that was not present when the enterprise agreement was made. Applications that seek the latter are to be made under s.210 of the Act. 89
[60] In the context of s.217 applications under the Act, the decision in Beltana, about an application for variation of a certified agreement under s.170MD(6) of the Workplace Relations Act 1996 (Cth) is often cited. In it, a number of principles were enunciated including that the Commission may not appropriately use its power to rewrite an agreement to install something that was not inherent to the agreement when it was made. 90
[61] Under the current legislation, an enterprise agreement can only be made by an employer and its employees who are employed at the time the agreement is made and will be covered by the agreement (s.172(2)(a)) and is only “made” when the employees to be covered by it have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement (s.182(1)). Against this backdrop, it has been considered that any concept of mutual objective intention that might inform the proper interpretation of an agreement may need to take into account the intention or understanding of employees, being those who make the agreement when by majority they approve it under s.182 of the Act. 91
[62] The Commission has before it an application to vary a single enterprise agreement under s.217. The application was made by the Company as the employer covered by the Agreement.
[63] On its face, the drafting of the disputed term at clause 13.2 – SUBSTITUTE DAYS is clear. The first sentence plainly provides that, For day work Employees only, a substituted day off will be applied when a public holiday occurs on a weekend and it is these words that on their face establish a right or entitlement to a substituted day for a public holiday that occurs on a weekend, with no express qualification related to government gazettal. The second sentence provides for when the substitute day will be observed – that is, The substitute day will normally be observed on the day declared in the Government Gazette or otherwise as agreed by the Parties. The second sentence expressly contemplates observance of a substitute day in an alternate circumstance to the day declared in the Government Gazette – that is, it will “otherwise” be observed as agreed by the defined “Parties” (the Company and the Unions). There is nothing in the plain text by which to read the clause down such that a substituted day will only be applied when a public holiday occurs on a weekend and is declared by Government Gazette. The remainder of clause 13.2 provides for shift work Employees with whom these applications are not concerned.
[64] Adopting the approach in Bianco Walling, it is appropriate to have regard to the surrounding circumstances, to the extent they are admissible, in discerning whether there is an ambiguity or uncertainty for the purposes of s.217. Indeed it was contended that the first paragraph of clause 13.2 only has a plain meaning when interpreted in the context of the admissible surrounding circumstances.
[65] The statutory context, namely the federal minimum standards underpinning the Agreement (and its 2017 and 2013 predecessors) and the history of the Victorian Government’s declaration of substituted days for public holidays, include objective facts to which regard may be had for this purpose. Certainly the National Employment Standards provide, as a minimum, for certain basic entitlements to absence (and for some employees payment) on public holidays and substituted days where so gazetted by the State of Victoria. In my view, the history of the variable or inconstant approach to gazetting of substituted days for certain public holidays together with the objective fact that the day work Employees’ roster is only ever worked on Monday to Friday (and therefore does not ordinarily attract the benefit of a public holiday that occurs on a weekend) is context telling of a reason why day work Employees (or their representative) or an employer could be motivated to seek to secure a particular form of words (whether as an additional benefit or ancillary term) in an enterprise agreement. Further the Agreement clearly provides that it supplements the National Employment Standards and there is nothing in this context to suggest that an additional benefit was not intended to be conferred by clause 13.2 of the Agreement. I do not consider this context to otherwise be of assistance to the present task.
[66] I accept that the historical evolution of an entitlement under an enterprise agreement may tell in favour of an ambiguity or uncertainty. I have analysed the historical provisions. In this case, I consider the industrial instruments that applied at Yallourn prior to the 2013 Agreement to establish nothing more than an evolution of obligations and entitlements, over a relatively long period of time, in which the drafters adopted different expressions and terminology than that in clause 13 of the Agreement. Similarly, past conduct relevant to those previously applicable industrial instruments does not greatly assist in the present task.
[67] The historical evidence establishes that the inclusion of the words at now clause 13 of the Agreement first appeared in the 2013 Agreement and it is mutually contended that some regard may be had to the negotiations for the 2013 Agreement in determining whether there is an ambiguity or uncertainty for the purposes of s.217. Much of this evidence is subjective and does not assist the Commission in the task before it. An obvious limitation is that it is confined to the recollections of a small number of participants in those negotiations, which is not representative of all bargaining representatives and does not go far (if it goes any way at all) to revealing the intentions or understanding of the employees. Where it exists, and to the extent it is admissible, I have attributed weight to that of a contemporaneous document in preference to bald recollections of some bargaining participants some 7 years after the fact.
[68] It is not contentious that the CFMEU was one of the bargaining representatives ultimately covered by the 2013 Agreement but, for completeness, I consider the evidence to establish that the CFMEU did represent at least 3 or 4 members who were day workers during the course of the negotiations for the 2013 Agreement (who had an interest in what is now the disputed term). Indeed, the Company acknowledged as much when it extended an invitation to the CFMEU to participate in discussions for the proposed separate maintenance agreement in May 2013.
[69] The evidence also establishes that, from the outset of the negotiations, the maintenance unions pressed for Easter Tuesday as a substitute holiday for Easter Saturday for day workers and this was one of their key claims; and the CFMEU sought a form of words as its “starting position” which would entitle day workers to a substitute day off when a public holiday occurs on the weekend (without limitation and, it follows, that claim did not exclude Easter Saturday). The evolution of the drafting is detailed in the summary of evidence above. From this, it is apparent that the form of words which ultimately appeared in the 2013 Agreement (as made and approved by the Commission) originated from the CFMEU’s “starting position” document.
[70] There does not appear to be any dispute that, by March 2013, the Company had agreed in-principle to the maintenance unions’ claim for Easter Tuesday as a substitute day for Easter Saturday. This featured in the offer that the Company put to the unions in March 2013, which specifically referenced the Tuesday after Easter Monday as a substitute for Easter Saturday and ANZAC Day being recognised as a substitute only if gazetted by the Victorian Government. However, an analysis of the words proposed at that time reflects those were the Company’s words (which it was open to “wordsmithing”) and did not represent an agreed form of drafting with any or all of the Unions.
[71] It can be readily understood from the contemporaneous email evidence that, as at 25 September 2013, the Company told the maintenance unions that it intended to withdraw its prior in-principle agreements reached with the maintenance unions. Mr Dodd confirmed in evidence that the email on its face is pretty clear about that withdrawal and accepted the proposition that the maintenance unions’ claim for Easter Tuesday as a substitute for Easter Saturday was “lost”. Much was sought to be made of Mr Dodd’s evidence about this, with the Company submitting it was inconsistent and should not be preferred (or perhaps believed) to the extent of the inconsistency. I did not assess Mr Dodd as a dishonest witness. Even if there was some great contradiction in his recollection of the loss of the Easter Tuesday claim, on a careful analysis of his evidence Mr Dodd did not at any point resile from his belief that the provision as put to a vote entitles day workers to a substitute day for any public holiday that occurs on a weekend.
[72] When regard is had to the wording of the draft agreement (already agreed in-principle with the CFMEU) that was attached to the 25 September 2013 email – it includes clause 13.2 in the same form as was ultimately made and approved as the 2013 Agreement, drafted in clear terms. That the clause appeared in the same form as at 25 September 2013 points to an objective conclusion that there was no further negotiation on this provision between the Company and the maintenance unions after the Company had reached agreement with the CFMEU.
[73] The evidence about the separate negotiations between the Company and the CFMEU which led to its in-principle agreement to the final proposed agreement on 25 September 2013 sheds no light on the mutual objective intention. Mr Chapple and Mr Aitken did not recall much discussion about this provision. Mr Chapple recalled a subjective motivation of the CFMEU may have been common claims across the industry; Mr Chapple recalled the Company’s subjective motivation given its view of affordability at the time. The lack of focus on this provision (by the Company and the CFMEU, in their discussions) would appear to be explicable by their mutual focus on bringing an end to the bargaining disputation and, in doing so, addressing the key claims related to the bulk of the CFMEU’s membership, the shift work Employees. But the absence of focus or care taken in finalising the agreement to be put to a vote in 2013 does not explain the common intention.
[74] At its highest, I accept the evidence indicates that the Company did not mean what clause 13.2 plainly provides. This intention does not, however, establish the mutual intention of the relevant parties. I do not accept the invitation of the Company to find that the absence of evidence or a failure to recall matters to refute some of Mr Chapple’s recollections of discussions in the 2013 negotiations answers the question of what was mutual intent; it simply establishes that there was no evidence of a contrary intent. Even if I were to accept Mr Chapple’s evidence of discussion about Easter Tuesday as a substitute day - and that there was never any discussion about public holidays falling on a weekend - the fact of a discussion or the absence of a discussion does not mean that the Company’s intention was mutually agreed.
[75] The evidence of the views of a handful of participants in negotiations for the 2013 Agreement, since replaced by 2 subsequent agreements, even where they appear in parts to be in common, do not establish a common intention of the employees and the employer to the Agreement. To this end, the Company’s position is not assisted by the absence of any explanation to employees about the provision in question. That is, notwithstanding the changed drafting to the 2008 Agreement, the explanatory materials given to employees before the vote for the 2013 Agreement did not explain how the new drafting at clause 13.2 was intended to apply to day workers. Prior offers in the 2013 negotiations had included detailed explanations about the Company’s position on substituted days for day workers, presumably to highlight its agreement to one of the maintenance unions’ key claims. But there is no evidence that the employees covered by the 2013 Agreement were cognisant of the withdrawal of that in-principle agreement, that such withdrawal was ever explained to them, or indeed that the words and effect of the words at clauses 13.1 and 13.2 (which were different to that in the previous, 2008 Agreement) were explained to them at any time during the negotiations for the 2013, 2017 or 2020 Agreements. In my view, the absence of such explanation does not tell in favour of a finding that employees understood, or could reasonably have understood, that clause 13.2 of the 2013 Agreement (and the subsequent agreements) meant something other than what the plain words provide.
[76] The objective background facts which are of most relevance are those which pertain directly to the Agreement and there is limited evidence in this regard. Just as it was not explained, it is not contentious that clause 13 and the matter of substituted public holidays was not raised in the negotiations for the 2020 Agreement and a dispute was first raised under its predecessor only after the 2020 Agreement was “made” and awaiting Commission approval.
[77] Evidence of subsequent conduct was considered by the Full Court in Bianco Walling as admissible to determining whether an ambiguity or uncertainty exists. That the Company has not subsequently, since the commencement of the 2013 Agreement, applied a substitute day for day work Employees for any public holiday that falls on a weekend is reflective of its interpretation as put to the Commission in these applications. The evidence is that it was not until 2020 that the claim first was made specific to ANZAC Day (when the 2017 Agreement was still in operation); and that there were no claims pressed for the substitutes for all public holidays occurring on weekends prior to the dispute subject of the Dispute Application filed in 2020. I do not consider the absence of a complaint about non-application of a substitute day on the rare occasions on which they could have arisen since the 2013 Agreement commenced operation to be sufficient to amount to a common understanding or meeting of the minds. Rather, this might best be characterised as common inadvertence in that it would appear more likely that no one had thought about the issue.
[78] In my view, the words of clause 13.2 of the Agreement are clear. I do not identify any ambiguity when considering the plain text of the surrounding provisions or when regard is had to the admissible evidence of surrounding circumstances. Such finding also leads to the conclusion that the disputed provision(s) are not uncertain, in the sense that they are not doubtful or vague and there is nothing in the unambiguous application of the disputed provision(s) which results in any uncertainty. I do not consider that there are rival contentions that may give rise to any ambiguity or uncertainty or that there is an arguable case for the Company’s contention to be made out. That the Company is contending for a finding which does not accord with the plain words used is not, in the particular circumstances of this case, a strong indicator of ambiguity or uncertainty.
[79] Even if the jurisdictional threshold were met, and an ambiguity or uncertainty were found to exist, I would not exercise the discretion to vary the Agreement. To vary the Agreement in the manner the Company contends would be to substantively and fundamentally alter the language of the Agreement. The installation of words that were not inherent in the Agreement when it was made, as the Company effectively asks the Commission to do, is not appropriate having regard to the purpose of the provision, read in the context of Part 2-4 of the Act as a whole, or taking into account the relevant circumstances of this particular application. I do not consider the circumstances of this particular application to tell in favour of the exercise of the discretion to vary the Agreement, whether in the form proposed by the Company or in any other form to give effect to the Company’s contention.
[80] For the above reasons, the Variation Application is dismissed.
[81] The principles that apply to the interpretation of an enterprise agreement were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd, 92 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.93 The Full Bench in Berri affirmed that the interpretation 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 dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context might appear from the text of the agreement as a whole, the place and arrangement of the disputed provision in the agreement, and the legislative framework under which the agreement was made.94
[82] The dispute resolution process at clause 29 provides that it “is to be used to assist in resolving any matter or dispute pertaining to the employment relationship”. The subject matter of this dispute is a “category 1 matter” because it goes to the application or interpretation of the Agreement with matters arising under the NES.
[83] It is not contentious and I am satisfied that: the Agreement covers and applies to the Employees in their work for the Company; the dispute is about a “category 1” matter(s), the parties agreed to expedited referral to the Commission and an attempt at conciliation did not resolve the dispute. Accordingly, I am satisfied that the pre-requisites of clause 29 of the Agreement have been followed, such that there is jurisdiction to resolve the dispute by way of arbitration pursuant to s.739 of the Act and the agreement of the parties in accordance with the term at clause 29 of the Agreement.
[84] Having regard to the evidence outlined above, to the extent that it is admissible, I have concluded that there is no ambiguity in the disputed term. The meaning of the drafting is plain on its face. The first paragraph of clause 13.2 of the Agreement does two things:
• In the first sentence, it provides an entitlement under the Agreement that, For day work Employees only a substitute day off will be applied when a public holiday occurs on a weekend.
• In the second sentence, it provides for when the substitute day will be observed. That is, The substitute day will normally be observed on the day declared in the Government Gazette or as otherwise agreed by the Parties.
[85] In the absence of any express definition, the reference to “public holiday” in the first paragraph of clause 13.2 is plainly to be understood by reference to that which immediately precedes it, at clause 13.1, which specifies the public holidays that an Employee (not limited to day worker or shift worker) shall be entitled to under the Agreement, without loss of pay, as New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen’s Birthday, Melbourne Cup Day, Christmas Day, Boxing Day and any additional public holidays gazetted by the State or Federal governments. Beyond the plain and express words of clause 13.2, which refers to a substitute day off being applied when a “public holiday” as defined at clause 13.1 occurs on a weekend, there is no other limitation on or circumstance applicable to the days when a substitute day will be applied. Clause 13.3 of the Agreement provides an entitlement for day work Employees to time off without loss of pay for all public holidays (including substitute days in lieu thereof) created in accordance with clause 13.1. The bracketed text clarifies the inclusion of substitute days in lieu of all public holidays and all public holidays are created in accordance with clause 13.1 of which the substitute days conferred at 13.2 are plainly in lieu. I do not find support in the surrounding provisions of the Agreement or the admissible surrounding circumstances for any finding to the contrary.
[86] The answer to the CFMMEU’s Question is: for the purposes of clause 13.2 of the Agreement, day work Employees are entitled to the application of a substitute day when a public holiday as defined in clause 13.1 occurs on a weekend.
DEPUTY PRESIDENT
Appearances:
Ms E.Sarlos of CFMMEU for the CFMMEU and AMWU.
Mr B.Avallone of counsel for EnergyAustralia Yallourn Pty Ltd.
Hearing details:
2020.
Melbourne (by Video).
17 November.
2021.
Melbourne (by Video).
8 February, 10 March.
Printed by authority of the Commonwealth Government Printer
<PR731068>
ANNEXURE A – Clause 13 of the Agreement
13 PUBLIC HOLIDAYS
13.1 GENERAL
An Employee shall be entitled to the following as public holidays without loss of pay:
New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen’s Birthday, Melbourne Cup Day, Christmas Day, Boxing Day and any additional public holidays gazetted by the State or Federal governments.
13.2 SUBSTITUTE DAYS
For day work Employees only, a substitute day off will be applied when a public holiday occurs on a weekend. The substitute day will normally be observed on the day declared in the Government Gazette or as otherwise agreed by the Parties.
In the case of shift work Employees, public holidays will be observed on the traditional date they occur, unless they happen to fall on another public holiday, in which case a substitute day will be observed on the following day unless otherwise agreed by the Parties.
13.3 PUBLIC HOLIDAYS – DAY WORK EMPLOYEE
Day work Employees shall be entitled to time off without loss of pay for all public holidays (including substitute days in lieu thereof) created in accordance with clause 13.1.
A day work Employee shall be remunerated at the rate of double time and a half for all work done on a public holiday.
Where work is performed on a public holiday and payment is due, one day off in lieu may be substituted for a portion of the payment due with the balance paid.
Subject to the NES, where a day-work Employee is absent from work on any part of the working day before or after a public holiday without reasonable excuse or without consent of the company, the Employee shall not be entitled to payment for such holiday.
13.4 PUBLIC HOLIDAYS – SHIFT WORK EMPLOYEE
Where a shift commences before midnight on a public holiday, the time so worked before midnight shall not entitle the Employee to the holiday rate; provided that the time worked by an Employee on a shift commencing before midnight on the day preceding a holiday and extending into a holiday shall be regarded as time worked on such holiday.
In respect to public holidays created under sub-clause 13.1, shift work Employees shall be entitled to the following in addition to their Normal Rate of Pay:
(a) Shift work Employees who are ‘rostered off’ on a public holiday shall, at the Employee’s discretion be entitled to either:
i. an annual leave credit of eight hours; or
ii. payment of eight hours at their Normal Rate of Pay.
(b) Shift work Employees who were ‘rostered off’ but work overtime on a public holiday shall, at the Employee’s discretion be entitled to:
i. in respect to the public holiday – an additional eight hours pay at their Normal Rate of Pay or eight hours annual leave credit in lieu of the public holiday; and
ii. in respect to the overtime – double time and a half of their Base Rate of Pay for all time worked, plus the applicable daily proportion of the Yallourn Allowance at single time.
(c) Shift-work Employees who are ‘rostered on’ and work ordinary time on a public holiday shall, at the Employee’s discretion, be additionally entitled to either:
i. an annual leave credit of one and a half times the period of the shift worked; or
ii. an annual leave credit of one times the period of the shift worked plus half times the period of shift worked in pay (at their Normal Rate of Pay).
iii. payment at the rate of one and a half times their Normal Rate of Pay for the shift worked.
iv. an annual leave credit of one half shift plus an additional one shift pay (at their Normal Rate of Pay)
ANNEXURE B - Evolution of clauses 13.1 and 13.2 in negotiations for the 2013 Agreement
Company’s “starting position” (extracted from the TRUenergy Yallourn Proprietary Limited Workplace Agreement 2008)
17.6 Public Holidays
Employees shall be entitled to the following Public Holidays without loss of pay- New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen's Birthday, Melbourne Cup Day, Christmas Day and Boxing Day. For day workers only, where New Year's Day, Australia Day, Christmas Day or Boxing Day fall on a weekend a substitute day will be granted. Anzac Day "substitute day" will be recognised if gazetted by the Victorian Government.
17.7 Shift Workers - Public Holidays
For the purposes of penalty payments, shift workers will recognise the public holiday on the day it falls on the calendar.
CFMEU’s “starting position” (extracted from PC-9)
13.1 GENERAL
Employees shall be entitled to the following as public holidays without loss of pay:
i. New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen’s Birthday, Melbourne Cup Day;
ii. a half day public holiday will be observed for Moe Cup Day; and
iii. Christmas Day, Boxing Day and any additional days gazetted by the State or Federal governments.
13.2 SUBSTITUTE DAYS
For day workers only, a substitute day off will be applied when a public holiday occurs on a weekend. The substitute day will normally be observed on the day declared in the Government Gazette or as otherwise agreed by the Parties.
In the case of shift work employees, public holidays will be observed on the traditional date they occur, unless they happen to fall on another public holiday, in which case a substitute day will be observed on the following day unless otherwise agreed by the Parties.
Company’s March 2013 offer to all unions (the SBU) (extracted from PC-37)
17.6 Public Holidays – General
Employees shall be entitled to the following Public Holidays without loss of pay – New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen’s Birthday, Melbourne Cup Day, Christmas Day and Boxing Day.
17.6.1 – Day Workers – Public Holidays
For day workers only, where New Year’s Day, Australia Day, Christmas Day or Boxing Day fall on a weekend a substitute day will be granted. The Tuesday immediately following Easter Monday will be recognised as the substitute day for Easter Saturday. If day work employees are required to work on Easter Saturday they will attract normal Saturday rates. Anzac Day “substitute day” will be recognised if gazetted by the Victorian Government.
Circulated during 5 day intensive negotiations between Company and CFMEU and as at 11 April 2013 (extracted from PC-14)
13 PUBLIC HOLIDAYS
13.1 GENERAL
An employee shall be entitled to the following as public holidays without loss of pay:
(a) New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen’s Birthday, Melbourne Cup Day; and
(b) Christmas Day, Boxing Day and any additional days gazetted by the State or Federal governments.
13.2 SUBSTITUTE DAYS
For day work employees only, a substitute day off will be applied when a public holiday occurs on a weekend. The substitute day will normally be observed on the day declared in the Government Gazette or as otherwise agreed by the Parties. In this regard Easter Tuesday has been agreed as the substitute for Easter Saturday.
In the case of shift work employees, public holidays will be observed on the traditional date they occur, unless they happen to fall on another public holiday, in which case a substitute day will be observed on the following day unless otherwise agreed by the Parties.
Company’s proposed agreement as at 24 April 2013/went to vote on 2 May 2013 (extracted from PC-18)
17.6 Public Holidays – General
Employees shall be entitled to the following Public Holidays without loss of pay – New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen’s Birthday, Melbourne Cup Day, Christmas Day and Boxing Day.
17.6.1 Day Workers - Public Holidays
For day workers only, where New Year’s Day, Australia Day, Christmas Day or Boxing Day fall on a weekend a substitute day will be granted. The Tuesday immediately following Easter Monday will be recognised as the substitute day for Easter Saturday. If day work employees are required to work on Easter Saturday they will attract normal Saturday rates. Anzac Day “substitute day” will be recognised if gazetted by the Victorian Government.
Yallourn Power Station Enterprise Agreement 2013 (as at 12 August 2013, extracted from PC-20)
13.1 GENERAL
An employee shall be entitled to the following as public holidays without loss of pay:
(a) New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen’s Birthday, Melbourne Cup Day; and
(b) Christmas Day, Boxing Day and any additional days gazetted by the State or Federal governments.
13.2 SUBSTITUTE DAYS
For day work employees only, a substitute day off will be applied when a public holiday occurs on a weekend. The substitute day will normally be observed on the day declared in the Government Gazette or as otherwise agreed by the Parties. In this regard Easter Tuesday immediately following Easter Monday has been agreed as the substitute for Easter Saturday. If day work employees are required to work on Easter Saturday they will attract normal Saturday rates.
In the case of shift work employees, public holidays will be observed on the traditional date they occur, unless they happen to fall on another public holiday, in which case a substitute day will be observed on the following day unless otherwise agreed by the Parties.
EnergyAustralia Yallourn Enterprise Agreement 2013 as at 25/9/13 (extracted from PC-22), 18/10/13 (PC-23) and approved by vote
13.1 GENERAL
An employee shall be entitled to the following as public holidays without loss of pay:
New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen’s Birthday, Melbourne Cup Day, Christmas Day, Boxing Day and any additional public holidays gazetted by the State or Federal governments.
13.2 SUBSTITUTE DAYS
For day work employees only, a substitute day off will be applied when a public holiday occurs on a weekend. The substitute day will normally be observed on the day declared in the Government Gazette or as otherwise agreed by the Parties.
In the case of shift work employees, public holidays will be observed on the traditional date they occur, unless they happen to fall on another public holiday, in which case a substitute day will be observed on the following day unless otherwise agreed by the Parties.
ANNEXURE C – Historical provisions in industrial instruments previously applicable at Yallourn
Yallourn 170MX Award
17.6 Public Holidays
Employees shall be entitled to the following Public Holidays without loss of pay: New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen’s Birthday, Melbourne Cup Day, Christmas Day and Boxing Day. For day workers only, where public holidays, except for Anzac Day, fall on a weekend a substitute day will be granted.
17.7 Shift Workers – Public Holidays
For the purposes of penalty payments, shift workers will recognise the public holiday on the day it falls on the calendar.
Yallourn Energy Proprietary Limited Certified Agreement 2004 (2004 Certified Agreement)
15.6 - Public Holidays
Employees shall be entitled to the following Public Holidays without loss of pay - New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen's Birthday, Melbourne Cup Day, Christmas Day and Boxing Day. For day workers only, where public holidays, except for Anzac Day, fall on a weekend a substitute day will be granted. Anzac Day “substitute day” will be recognised if gazetted by the Victorian Government.
15.7 Shift Workers - Public Holidays
For the purposes of penalty payments, shift workers will recognise the public holiday on the day it falls on the calendar.
TRUenergy Yallourn Proprietary Limited Workplace Agreement 2008
17.6 Public Holidays
Employees shall be entitled to the following Public Holidays without loss of pay- New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Labour Day, Anzac Day, Queen's Birthday, Melbourne Cup Day, Christmas Day and Boxing Day. For day workers only, where New Year's Day, Australia Day, Christmas Day or Boxing Day fall on a weekend a substitute day will be granted. Anzac Day "substitute day" will be recognised if gazetted by the Victorian Government.
17.7 Shift Workers - Public Holidays
For the purposes of penalty payments, shift workers will recognise the public holiday on the day it falls on the calendar.
1 AG2020/1734 filed on 18 June 2020.
2 C2020/4793 filed on 19 June 2020.
3 Clause 2(a) of the Agreement.
4 Clause 2 of the Agreement, see also definition of “Parties” at clause 1 which “means the Company and Unions as defined in clause 2”.
5 [2020] FWCA 2439 at [3]; Clause 2(b) of the Agreement; Clause 1 of the Agreement.
6 Clause 2 of the Agreement.
7 F10 Application at 2.1.
8 CFMMEU’s Proposed Question for Arbitration filed on 17 August 2020.
9 EnergyAustralia’s Proposed Question for Arbitration filed on 17 August 2020..
10 PN26-30 on 17 November 2021.
11 Clauses 10.2 and 10.3 of the Agreement.
12 Mr Dodd on Transcript at PN606 on 8 February 2021; Mr Aitken on Transcript at PN328 on 8 February 2021.
13 First Witness Statement of Mr Peter Chapple at Annexure PC-32; Witness Statement of Mr Geoffrey Dyke at 26.
14 First Witness Statement of Mr Peter Chapple at Annexure PC-32; Mr Dyke on Transcript at PN161-162 and PN226 on 8 February 2021.
15 First Witness Statement of Mr Peter Chapple at Annexure PC-34.
16 First Witness Statement of Mr Peter Chapple at Annexure PC-35.
17 First Witness Statement of Mr Peter Chapple at Annexures PC-2, PC-3 and PC-4.
18 Witness Statement of Mr Geoffrey Dyke at 29; Mr Dyke on Transcript at PN176, 182, PN205-206, PN34-35, PN212, PN215-217 and PN223-224 on 8 February 2021; Mr Aitken on Transcript at PN329-332 and PN445-446 on 8 February 2021.
19 First Witness Statement of Mr Peter Chapple; Mr Dodd on Transcript at PN559 on 8 February 2021; Mr Aitken on Transcript at PN299 on 8 February 2021; Mr Bukarica on Transcript at PN680-681 on 17 November 2021.
20 Mr Aitken on Transcript at PN383-384 on 8 February 2021; First Witness Statement of Mr Peter Chapple at 30.
21 Mr Dyke on Transcript at PN189 on 8 February 2021.
22 Mr Dodd on Transcript at PN592 and PN605 on 8 February 2021.
23 Mr Aitken on Transcript at PN329-334 on 8 February 2021.
24 Mr Dodd on Transcript at PN555-557 on 8 February 2021; First Witness Statement of Mr Peter Chapple at 36.
25 Second Witness Statement of Mr Peter Chapple at 22.
26 First Witness Statement of Mr Peter Chapple at 33-34 and Annexure PC-10.
27 Witness Statement of Mr Geoffrey Aitken at 49; Second Witness Statement of Mr Peter Chapple at 8 and 9.
28 Mr Dodd on Transcript at PN599 on 8 February 2021; First Witness Statement of Mr Peter Chapple at 37 and Annexure PC-11.
29 Third Witness Statement of Mr Peter Chapple at 31 and 32.
30 Second Witness Statement of Mr Peter Chapple at Annexure PC-37.
31 Second Witness Statement of Mr Peter Chapple at Annexure PC-38.
32 First Witness Statement of Mr Peter Chapple at 44-46.
33 First Witness Statement of Mr Peter Chapple at 41 and Annexure PC-4; Mr Aitken on Transcript at PN451-452 on 8 February 2021.
34 First Witness Statement of Mr Peter Chapple at 41 and 42.
35 First Witness Statement of Mr Peter Chapple at 43.
36 Mr Dodd on Transcript at PN583-584 and PN586 on 8 February 2021.
37 Witness Statement of Mr Geoffrey Aitken at 58; Mr Aitken on Transcript at PN371-381 on 8 February 2021.
38 First Witness Statement of Mr Peter Chapple at 49, 50 and Annexure PC-14.
39 First Witness Statement of Mr Peter Chapple at 48.
40 First Witness Statement of Mr Peter Chapple at 54 to 58 and Annexure PC-18.
41 First Witness Statement of Mr Peter Chapple at Annexure PC-19; Mr Aitken on Transcript at PN407-408 on 8 February 2021.
42 First Witness Statement of Mr Peter Chapple at PC-18.
43 Mr Aitken on Transcript at PN411-414 on 8 February 2021; Mr Dodd on Transcript at PN637-639 on 8 February 2021; First Witness Statement of Mr Peter Chapple at 59.
44 Witness Statement of Mr Aitken at 35-36; Second Witness Statement of Mr Peter Chapple at 18.
45 First Witness Statement of Mr Peter Chapple at 60; Mr Dodd on Transcript at PN596 on 8 February 2021.
46 Mr Aitken on Transcript at PN415-416 on 8 February 2021; Mr Dodd on Transcript at PN608 on 8 February 2021 ; Witness Statement of Mr Branko Bukarica at 13 and 18.
47 Mr Bukarica on Transcript at PN690 on 17 November 2020.
48 Mr Bukarica on Transcript at PN685, PN688-689, and PN718 on 17 November 2020; Witness Statement of Mr Branko Bukarica at 18; Mr Aitken on Transcript at PN335-336 and PN349-353 on 8 February 2021; First Witness Statement of Mr Peter Chapple at 37.
49 First Witness Statement of Mr Peter Chapple at Annexure PC-20.
50 First Witness Statement of Mr Peter Chapple at 63.
51 Mr Aitken on Transcript at PN418-419 on 8 February 2021.
52 First Witness Statement of Mr Peter Chapple at Annexure PC-22.
53 Mr Dodd on Transcript at PN624-625; 640-642 and 666-670 on 8 February 2021.
54 Mr Dodd on Transcript at PN685-88 on 8 February 2021.
55 Mr Dodd on Transcript at PN688-701.
56 Mr Dodd on Transcript at PN701, 725-733 on 8 February 2021.
57 First Witness Statement of Mr Peter Chapple at Annexure PC-22.
58 First Witness Statement of Mr Peter Chapple at Annexure PC-23.
59 First Witness Statement of Mr Peter Chapple at Annexure PC-23.
60 Mr Dodd on transcript at PN646-649 on 8 February 2021.
61 First Witness Statement of Peter Chapple at 81-88.
62 Sections 6-8 of the Public Holidays Act 1993 (Vic).
63 Section 6(h) of the Public Holidays Act 1993 (Vic); CFMEU and others re Timber and Allied Industries Award and others (Applications to vary the public holiday clause in relation to ANZAC Day) (PR945919, 20 April 2004, Watson SDP, Kaufman SDP and Mansfield C) at [32].
64 First Witness Statement of Mr Peter Chapple at Annexure PC-8.
65 First Witness Statement of Mr Peter Chapple at 13-16.
66 First Witness Statement of Mr Peter Chapple at 18-21 and Annexure PC-7.
67 First Witness Statement of Mr Peter Chapple at 22-26.
68 First Witness Statement of Mr Peter Chapple at 27-28.
69 Mr Dodd on Transcript at PN566-567 on 8 February 2021.
70 Second Witness Statement of Mr Peter Chapple at 29-30.
71 Second Witness Statement of Mr Peter Chapple at 33-34.
72 Ibid.
73 First Witness Statement of Mr Peter Chapple at 90; Mr Dodd on Transcript at PN431-432 on 8 February 2021.
74 First Witness Statement of Mr Peter Chapple at 91.
76 Third Witness Statement of Mr Peter Chapple at 7.
77 Witness Statement of Mr Geoffrey Dyke at 20, 21 and 25 and Annexure GD-2.
78 Mr Dyke on Transcript at PN158-159 and PN228-230 on 8 February2021.
79 Transcript of 17 November 2020 at PN26-27.
80 AMWU, ASU, AWU and CEPU emails of 6 and 7 July 2020.
81 Transcript of 17 November 2020 at PN6.
82 Section 3(a) and (f) of the Act.
83 Section 171 of the Act.
84 Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union [2016] FCAFC 122 (Teys) at 19.
85 Bianco Walling Pty Ltd v CFMMEU [2020] FCAFC 50 (Bianco Walling) at 74 and 75.
86 Tenix Defence Systems Pty Limited Certified Agrement 2001-2004 [2002] AIRC 531 at [49] as cited in Bianco Walling at 70; see also Specialist People [2019] FWCFB 6307 (Specialist People) at [41].
87 Bianco Walling at 87.
88 Bianco Walling at 67-72.
89 Specialist People at [42].
90 Beltana No 1 Salaried Staff Certified Agreement 2001 [2003] AIRC 608 at 23.
91 See, for example, Specialist People at [49] and Teys at 7-10.
92 [2017] FWCFB 3005 (Berri).
93 [2014] FWCFB 7447 (Golden Cockerel).
94 Berri at [114] and Golden Cockerel at [41].