FEDERAL COURT OF AUSTRALIA

Pacific National Pty Ltd v Australian Rail, Tram and Bus Industry Union [2026] FCAFC 135

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders and declarations made by the South Australian Employment Tribunal (sitting as the South Australian Employment Court) entered on 30 July 2025 be set aside and, in lieu thereof, the respondent’s application for pecuniary penalties dated 28 August 2023 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER J:

1    I have had the benefit of reading the judgments of McDonald and Vandongen JJ for which I am grateful. I agree, for the reasons expressed by Vandongen and McDonald JJ, that ground 3 of the appeal must be upheld. I hold the same view with respect to ground 4, for the reasons given by McDonald J. It is not necessary to decide the other grounds of appeal. As a consequence, an order must be made that the declarations and other orders made by the South Australian Employment Court be set aside.

Associate:

Dated:    9 October 2026

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

2    The issues presented by this appeal, from a decision of a deputy president of the South Australian Employment Tribunal, sitting as the South Australian Employment Court, concern the construction and application of certain provisions of the Pacific National Intermodal Train Crew Enterprise Agreement 2021 (Agreement), which apply to the employment of train drivers in connection with the provision of long-distance rail transport services across Australia. The appellant, Pacific National Pty Ltd, contends that the deputy president made various errors which led him to make declarations to the effect that Pacific National Pty Ltd contravened certain provisions of the Agreement. The position of the respondent, the Australian Rail, Tram and Bus Industry Union (ARTBIU), is that the decision and reasons of the deputy president were correct and that the appeal should be dismissed.

3    I have had the benefit of reading the reasons for judgment of Vandongen J. I agree with his Honour’s conclusion that this appeal should be allowed. However, my reasons for reaching that conclusion are different from those expressed by his Honour.

4    As Vandongen J explains, there has been some apparent inattention to, and confusion regarding, the identity of the entity which employed the relevant employees. In the proceeding below, which was commenced by the ARTBIU, Pacific National Pty Ltd was named as the respondent. However, Pacific National Services Pty Ltd, which is identified in the Agreement as one of the parties bound, filed a response on behalf of the respondent. The statement of agreed facts states that the train drivers were employed by Pacific National Services Pty Ltd. In the reasons for judgment of the deputy president, Pacific National Services Pty Ltd is identified as the respondent and the employer. However, the orders of the deputy president, against which the present appeal is brought, identify Pacific National Pty Ltd as the respondent, and make declarations that the respondent contravened the Agreement, that it thereby contravened s 50 of the Fair Work Act 2009 (Cth) (FW Act), and that several of the contraventions were “serious contraventions” within the meaning of s 557A of the FW Act.

5    In these reasons, it will be convenient to refer to the employer and the party bound by the Agreement as “Pacific National”, without resolving the uncertainty regarding the identity of the entity concerned.

6    Unfortunately, the Agreement is not the archetype of a coherent instrument. Some clauses that appear to be intended to achieve similar results are drafted in different language, and similar language appears to be used in different places, sometimes with different meanings. The Court has not been assisted by any extrinsic evidence that would enable us to better ascertain the purpose of the clauses which are in dispute, or by evidence (beyond what appears from the limited statement of agreed facts) that would facilitate the interpretation of the Agreement with an appreciation of “industrial realities” and “customs and working conditions of the particular industry” which the parties are likely to have had in mind when negotiating and drafting it: cf City of Wanneroo v Holmes (1989) 30 IR 362 at 378‑9. That there should be disagreement as to the preferable construction of the provisions of the Agreement which are in issue on the appeal is perhaps unsurprising.

7    In summary, doing my best to interpret the Agreement, I have reached the conclusion that the better view is that:

(a)    despite apparently being primarily concerned with principles to be taken into account by Pacific National in fixing rostering arrangements, Attachment 1 to the Agreement contains provisions that are intended to (and on their proper construction, do) impose substantive limits not only on rostered shift lengths but also on the actual lengths of shifts which employees can be required to work;

(b)    cl 6.6.1 of Attachment 1 contemplates that employees may be required to work beyond the rostered shift lengths but only up to a maximum shift length (in other words, there are to be “hard caps” on actual shift lengths);

(c)    cl 4.1.1 of Attachment 1 fixes the maximum shift lengths that may be rostered in relation to categories of shifts, but also serves the dual function of fixing the maximum actual shift lengths in relation to those categories of shifts (in other words, the maximum shift lengths defined by cl 4.1.1 operate as “hard caps” on actual shift lengths);

(d)    cl 4.3.1 of Attachment 1 operates as an exception to the maximum actual shift lengths fixed by cl 4.1.1, by extending the maximum actual shift length that employees may be required to work to 16 hours in the circumstances of an “emergency”, as described in cl 4.3.1 (that is, cl 4.3.1 permits Pacific National to require employees to work beyond the end of their rostered shifts for longer than would otherwise be permitted in “emergency” circumstances only, up to a limit of 16 hours);

(e)    cl 14 of Attachment 1 does not impose “hard caps” on actual shift lengths in relation to the limited class of shifts to which cl 14 applies;

(f)    item 1 of Attachment 6 contemplates that, in relation to services involving the Port Augusta, Kalgoorlie and Perth depots, employees in crews of two or three may be required to work in excess of the maximum rostered shift limits of 12 hours fixed by cl 4.1.1 (in the case of crews of two) or 15 hours fixed by cl 14.1 (in the case of crews of three), and that, instead of there being a “hard cap” on actual shift lengths, employees may be required to work beyond the rostered shift lengths, with such hours to be “treated as overtime and paid at overtime rates”, irrespective of whether those hours would otherwise be treated as overtime in accordance with cl 16 of the body of the Agreement; and

(g)    item 1 of Attachment 6 is inconsistent with the scheme of “hard caps” on actual shift lengths, to which the “emergency” provision in cl 4.3.1 operates as an exception, and thus prevails over the provisions in Attachment 1 which establish that scheme (including cl 4.3.1, that provision forming an integrated part of the entire scheme).

8    My reasons for reaching these conclusions are explained below. It follows that grounds 2, 3 and 4 of the appeal should be upheld, and the appeal should be allowed.

9    In light of these conclusions, it is unnecessary to express a final view in relation to ground 1 of the appeal. As Vandongen J points out in his reasons, the Agreement does not always expressly state that it imposes obligations on Pacific National which are capable of being contravened, or clearly spell out the content of those obligations. Although I do not think this necessarily leads to the conclusion that the Agreement cannot be construed as imposing any relevant obligations on Pacific National, I prefer not to decide that question in circumstances where it is not necessary to do so to dispose of the appeal.

10    These conclusions also mean that it is unnecessary to determine grounds 5, 6, 7 and 8 of the appeal.

The construction of relevant provisions of the Agreement

11    I agree generally with what Vandongen J has said about the principles of interpretation which are relevant to enterprise agreements. The structure and the relevant provisions of the Agreement are described in the reasons of Vandongen J. I will only refer to particular provisions of the Agreement where it is convenient to do so in order to explain my reasons.

Relevant clauses in the body of the Agreement

12    The Agreement comprises 52 numbered clauses in the body of the Agreement, many with multiple subclauses, followed by eight distinct “Attachments”. Attachment 1 is entitled “Rostering Guidelines”. That title might be thought to give rise to an assumption that the matters contained in Attachment 1 are merely matters to be taken into account by Pacific National when preparing employee rosters. The terms of cl 18 of the body of the Agreement, which is entitled “General Rostering Provisions”, lend some further support for this assumption. Clause 18.3 states:

18.3    In developing Rosters, Pacific National must take into account the following:

18.3.1    Family, social and work commitments.

18.3.2    Occupational Health and Safety and specifically Fatigue management principles.

18.3.3    Maintenance of qualifications.

18.3.4    Quality of work

18.3.5    Relevant conditions of employment.

18.3.6    Duty of care obligations.

18.3.7    Optimal staff productivity.

18.3.8    Fair working for the employees.

18.3.9    Specific roster arrangements are detailed in Attachment 1 to this Agreement.

13    Despite its being capitalised, “Rosters” is not a defined term in the Agreement, but it must refer to the “Master Roster” and the “Working Roster”, which are both defined in cl 4, as follows:

Master Roster    Roster(s) that are permanently displayed at a location that show rostered days off and any known tasks or work.

…

Working Roster    Roster(s) developed from Master Rosters that provide more detail of attendance requirements. Working Rosters allocate employees to work lines and adjust the rostered work to accommodate work variations, planned leave and/or any other issues known at the time of posting.

14    Clause 18.3 is somewhat ungrammatical, in that cl 18.3.9 appears from its terms to be a standalone sentence in its own right, rather than a matter merely to be “take[n] into account” in developing rosters. In my view, it is clear enough that, despite the structure and literal terms of cl 18.3, the intended effect of cl 18.3.9 is that Attachment 1 is to provide for “rostering arrangements” which Pacific National is required to adhere to, and not merely considerations that it must “take into account”.

15    Clause 18.3 is one of only a few provisions in the body of the Agreement that refer to Attachment 1, and the only one that purports to describe its operation or effect. One might therefore naturally expect the provisions of Attachment 1 to be limited to prescribing principles, and perhaps rules or obligations, to which Pacific National is required to have regard when developing the Master Rosters and Working Rosters. However, for the reasons that follow, in my view, the terms of Attachment 1, on their proper construction, impose limits not only on the hours that may be rostered, but also on the maximum number of hours that employees may actually be required to work once they have commenced a rostered shift.

16    Before addressing the terms of Attachment 1 itself, a few other provisions in the body of the Agreement should be noted. First, cl 13.1 provides:

Employees will be credited with the hours shown in the Working Roster or actual hours worked (including ordinary hours worked on a public holiday), whichever is the greater.

17    Clause 13.2 appears to create certain limited exceptions to the statement in cl 13.1, but it is not necessary to explore them. The importance of cl 13.1 for present purposes is that it explicitly recognises a distinction between the rostered hours (that is, “the hours shown in the Working Roster”) and the number of hours actually worked by an employee, and contemplates that the actual hours worked may be “greater” than the rostered hours (or vice versa). The use of the language “actual hours worked”, in distinction to the hours shown in a roster, is significant. Clause 13.3 also uses the expression “actual hours worked” in the same sense.

18    The remaining provisions of cl 13 make quite detailed provision for the crediting of hours to employees in the context of the “Duty Cycle”, which is explained in the reasons of Vandongen J. The only other provision which I need note is cl 13.11, which states:

Any shortfall of hours against target hours may be recovered through the rostering of additional shifts in the Working Roster, and/or through working of additional hours consistent with the provisions of the rostering guidelines in Attachment 1.

19    Clause 13.11 contemplates an employee working “additional hours”. Since, within the context of cl 13.11, this is a distinct concept from “the rostering of additional shifts”, I think this must be understood as referring to additional hours that are worked as part of a rostered shift, beyond the number of hours originally specified in the roster for that shift – that is, additional “actual hours” over and above the “rostered hours”. The significance of cl 13.11 for present purposes is that not only the rostering of hours, but also the “working of additional hours”, is required to be “consistent with the provisions of the rostering guidelines in Attachment 1”. That is, cl 13.11 is a provision in the body of the Agreement that provides some support for an expectation that Attachment 1, despite being described as “rostering guidelines”, may also contain substantive provisions that control, limit, or otherwise regulate the working of additional actual hours in connection with rostered shifts.

The concepts of “sign on” and “sign off”

20    One of the arguments advanced by the ARTBIU, which the deputy president appears to have accepted at [103] of his reasons, relates to the use of the expression “sign on to sign off” in cl 14.1 of Attachment 1 to the Agreement. As will be seen, I do not think that this terminology is ultimately of much assistance in resolving the issues of construction presented by the appeal. However, it is necessary to understand the concepts of “sign on” and “sign off” and their relationship to shift lengths.

21    Clause 41 in the body of the Agreement is entitled “Home Base and Sign-On/Sign-Off”. It provides that, upon commencing employment, each employee is to be allocated a “sign on/sign off” point “at which [they] shall commence and finish a shift”. The “sign on/sign off” point is to be at the depot, terminal or office that is that employee’s “home base” – meaning “that depot, terminal or office where they generally commence and finish work”. Clause 41 indicates that a shift is to start and finish at the “sign on/sign off” point. By inference, a shift is to commence at “sign on” and to end at “sign off”. I note that the deputy president recorded in his reasons (at [17]) that “[t]he parties accept[ed that] all shifts commenced with sign on and ended with sign off at a point in a depot”.

22    Employees may be required to sign on and sign off at other designated points, away from their “home base” (cl 41.4), in which case they may become entitled to be paid for excess travelling time (cl 41.5) and/or to be reimbursed for additional travel expenses (cl 41.6). Clause 41.6.3 provides that, where an employee finishes work at a location that is different from the sign on location, Pacific National will provide transport back to the sign on point, and “actual sign-off will be on the return to the sign-on location and shall be within the Shift Length”. The expression “Shift Length” is not defined. Nevertheless, it is of some, albeit minor, relevance to note that cl 41.6.3 recognises that a “Shift Length” is to extend to the “actual sign-off”.

The interpretation of cll 4 and 6 of Attachment 1

23    Reading the Agreement as a whole, and making some allowance for the obvious lack of attention to technical detail in its drafting, it is clear from the terms of many of its clauses that Attachment 1 is intended to impose substantive limits on the way Pacific National can roster employees and therefore, at least implicitly, also to impose negative corollary obligations on Pacific National not to roster employees to work shifts that are inconsistent with those limits. In particular, it is clear that several terms (including, relevantly, cll 4.1, 14 and 15 of Attachment 1) are intended to impose limits on the maximum number of hours for shifts on which employees may be rostered.

24    The more difficult question is whether certain provisions in Attachment 1 are intended to impose limits not only in relation to the preparation of rosters but also in relation to the actual hours that Pacific National may require employees to work once they have commenced a rostered shift.

25    Clauses 3.7 and 3.9.6.1 of Attachment 1, like cl 13.1 in the body of the Agreement, recognise a distinction between rostered hours and hours actually worked. Clause 3.7 provides that, where employees mutually exchange working shifts, each employee is to be credited with the higher of “the rostered hours or the actual hours worked for the shift they have completed” (emphasis added). Similarly, clause 3.9.6.1 provides that a driver is to be “credited [with] the greater of the original rostered hours, changed rostered hours or actual hours worked” (emphasis added).

26    Clause 6 of Attachment 1 is entitled “Rostered Working Time and Actual Working Time”. Consistently with the use of the expression “actual hours” in the provisions to which reference has just been made, I interpret this title as a reference to the distinction between the start times, end times and lengths of shifts as rostered and the start times, end times and lengths of shifts as actually worked. The word “actual” does not appear in the text of cl 6 itself, but cl 6.6 can only sensibly be read as being addressed to the same distinction. Clause 6.6 states:

6.6    Shift Lengths will vary according to operational needs as follows:

6.6.1    employees may be required to work hours additional to those in the Master/Working Roster (up to the maximum Shift Length) to complete the assigned task(s).

6.6.2    employees may be required to work up to the rostered sign off time when the task(s) are completed short of the estimated time.

6.6.3    employees may be asked to work up to the shift limit by agreement once the assigned task(s) are completed.

27    I make the following observations about this provision. First, the only kinds of rosters contemplated by the Agreement are the Master Roster and the Working Roster. The reference in cl 6.6.1 to employees being “required to work hours additional to those in the Master/Working Roster” must, therefore, be a reference to actual hours worked by an employee in the course of completing a particular shift. The words in brackets, “up to the maximum Shift Length”, tend to confirm this. Moreover, those words strongly imply that there is, or can be, a “maximum” shift length which operates as a limit or “hard cap”, not on the maximum length of a rostered shift but on the maximum number of hours that an employee may be required to actually work on a shift. The words of cl 6.6.1 seem to me to be clear in this regard; I cannot see any other way to interpret them.

28    The terms of cl 6.6.1 imply that relevant maximum shift length(s) are identified elsewhere in the Agreement (including, potentially, elsewhere in Attachment 1). Despite significant uncertainty created by unclear and inconsistent use of language, I consider that maximum shift lengths are, in fact, prescribed by cl 4.1 of Attachment 1. I shall explain my understanding of the operation of cl 4.1 shortly.

29    I interpret cl 6.6.2 as meaning that, even if all of the tasks to which the original rostered shift relates have been completed before the rostered sign off time, Pacific National may require employees to continue to work (presumably undertaking different tasks) up until the rostered sign off time. As has been seen above, cl 13.1 in the body of the Agreement entitles employees to be credited with the greater of the rostered hours and the hours actually worked – so it makes sense that Pacific National should be entitled to elect to utilise employees for other tasks, up to the minimum time for which it is required, in any event, to pay them.

30    Conversely, I interpret cl 6.6.3 as permitting Pacific National to ask an employee to work beyond the rostered sign off time in order to undertake tasks other than those originally assigned in the roster, but obliging the employee to do so only if they agree to continue working. I think the expression “the shift limit” in cl 6.6.3 must have been intended to mean the same as the expression “the maximum Shift Length” in cl 6.6.1 – that is, it is a reference to a “hard cap” on the permissible actual shift length.

31    Clause 6.6.3 illustrates the difficulty with the drafting of the Agreement, in that (on my interpretation) it uses a different expression (“shift limit”), the meaning of which is not entirely clear, and which (it appears) is intended to have the same meaning as the expression “maximum Shift Length”. Nevertheless, the language employed in cl 6.6.3 does not suggest any alternative interpretation, and I am satisfied that this is how cl 6.6.3 operates. I note that the expression “shift limit” is also used in cl 4.1.4.4 (mentioned below), and in that context it is also apparently used to refer to a maximum actual shift length. (That said, I also acknowledge that the term “shift limit” does not always seem to be used consistently, because it appears in item 1 of Attachment 6 as part of the expression “rostered shift limits”, and in that context, the inclusion of the word “rostered” seems to make clear that the reference is to the maximum rostered shift length, and not a limit on actual shift lengths.)

32    I have addressed the operation of cll 6.6.2 and 6.6.3 because they form part of cl 6, and I think it appropriate to ascertain how that clause as a whole is intended to operate, in circumstances where I am inclined to place significant weight on what I regard as the clear terms of cl 6.6.1 in influencing the construction of the Agreement (and cl 4.1 in particular).

33    When cll 6.6.1 and 6.6.3 are considered together, they indicate that Pacific National may require an employee to work up to the “maximum shift length” to complete “the assigned tasks” (ie, the tasks which they were rostered to perform on that shift), with or without the employee’s agreement, and may require an employee to work up to the “maximum shift length” to complete other tasks only with their agreement. Although the clauses are expressed in permissive terms, in my view, it is necessarily implicit in the grant of a limited permission (ie, limited by the words “up to the maximum Shift Length” in cl 6.6.1 and “up to the shift limit” in cl 6.6.3) that Pacific National is not permitted to require employees to work beyond the maximum shift length, with or without their agreement.

34    The terms of cl 6.6 inescapably imply that the Agreement imposes some outer limit – that is, in the language of the parties’ submissions, a “hard cap” – on the actual time that employees can be required to work (with or without their agreement) on at least some kinds of shifts.

35    Clause 4.1 of Attachment 1 is entitled “Maximum shift lengths”. The similarity of this language to the language of cl 6.6.1 is notable, but should not be given undue weight in circumstances where the Agreement does not always use language precisely. Clause 4.1 is as follows:

4.1    Maximum shift lengths

4.1.1    The maximum rostered Shift Length shall be twelve (12) hours, subject to the limits prescribed in the following table:

4.1.2    For twelve (12) hour shifts, crews may be rostered for a maximum of 12 hours from sign on to sign off. For all rostered 12 hour shifts, a process of consultation will occur in respect of but not limited to the following:

4.1.2.1    the corridor concerned.

4.1.2.2    the robustness of the timetable shift; and

4.1.2.3    the availability of suitable relief

4.1.3    The existing twelve (12) hour shifts arrangements in place on corridors prior to the lodgement of this Agreement will continue to operate.

4.1.4    The rostering and management of 12 hour shifts is to be guided by the following:

4.1.4.1    No more than four consecutive 12 hour shifts in any one week.

4.1.4.2    No more than six (6) twelve (12) hour shifts in any 14 day period, with a minimum of four rostered days off will apply. Where locations, other than those within NSW, have rosters that at the time of certification contain in excess of 6 X 12 hour shifts, these rosters will remain in place subject to future roster development.

4.1.4.3    A 12 hours [sic] shift is defined as any shift in excess of eleven (11) hours.

4.1.4.4    During the roster development process, where shifts in excess of eleven (11) hours are rostered the Master Roster will contain either a relief, local, available or other operational provision, as necessary, to provide relief for crews who may exceed the twelve (12) hour shift limit.

4.1.4.5 Crew will not be required to undertake any work, including driving a motor car, where the traveling time and the original working time exceeds twelve (12) hours or nine (9) hours for a driver only shift.

36    As has already been noted, despite being capitalised in many (but not all) instances, “Shift Length” is not a defined term in the Agreement. There are further aspects of the drafting of this clause which I acknowledge are puzzling, and ostensibly inconsistent:

(1)    The opening words of cl 4.1.1 refer to the “maximum rostered Shift Length”, whereas it is clear that cl 6.6.1 uses the expression “maximum Shift Length” to refer to a maximum actual shift length.

(2)    The second column of the table in cl 4.1.1, headed “Maximum Shift Length”, is evidently supposed to serve the function of prescribing the “limits” to which the “maximum rostered Shift Length” is to be “subject”. This tends to suggest that the numbers of hours stated in each cell in that column are intended to be maximum rostered shift lengths, only, and not maximum actual shift lengths.

(3)    The fourth, fifth and sixth rows in the table each include a statement, in the second column, that “Actual shifts may be worked up to [X] hours to complete assigned tasks due to unavoidable necessities”. It is not clear why this would be thought necessary if the number of hours stated in the second column were meant to be maximum actual shift lengths (ie, “Maximum Shift Lengths” as that expression is used in cl 6.6.1). Again, this supports the view that the number of hours initially stated in the second column of the table is a maximum rostered shift length only, with maximum actual shift lengths separately identified where they apply.

(4)    On the other hand, it is not apparent why this statement would appear only in the fourth, fifth and sixth rows, and not in the first, second and third. If the crew arrangements referred to in the fourth, fifth and sixth rows of the table are intended to be subject to hard caps on actual shift lengths, it is not at all apparent why the crew arrangements referred to in the first, second and third rows (which involve only one driver or a second person who is not trainee or qualified driver) should not also be subject to similar hard caps.

(5)    The number of hours that “actual shifts” may be worked in relation to the crew arrangements referred to in the fourth and sixth rows in the table is the same as the number of hours stated as the “Maximum Shift Length” for such crew arrangements, but in the fifth row, the number of hours that “actual shifts” may be worked (12 hours) is different from the “Maximum Shift Length” (11 hours). It is not clear whether this difference was intentional, or whether either “11 hours” or “12 hours” in the fifth row of the table is a typographical error. While it is possible that the intention was to prescribe a maximum rostered shift length of 11 hours and a maximum actual shift length of 12 hours for the crew arrangement referred to in the fifth row of the table, it is not obvious why such a policy would be favoured, and it seems somewhat improbable. It is also possible that the “12 hours” in the fifth row was copied from the sixth row and was not changed, as it should have been, to “11 hours”. It is unnecessary to resolve this conundrum.

(6)    The numbered notes that appear in second column of the fourth and sixth rows of the table, regarding consultation requirements, do not have an analogue in the fifth row. Again, the reason (if any) for this difference is not obvious.

37    Notwithstanding these enigmatic features of cl 4.1.1, I think it is clear that the hours identified in the second column of the table are intended to operate as maximum rostered shift lengths. It is not entirely clear whether, in relation to the crew arrangements referred to in the first, second and third rows of the table, they are also intended to operate as maximum actual shift lengths. That may be the case, but it is not necessary to decide that on this appeal, which does not concern shifts involving those kinds of crew arrangements.

38    It is also clear, in my view, that the references to “Actual shifts” in the second column in each of the fourth, fifth and sixth rows of the table refer to the maximum lengths for actual shifts. I do not see how the words “Actual shifts may be worked up to” can be understood as referring to anything other than a limit for the number of actual hours that can permissibly be worked on a shift.

39    This view of these parts of cl 4.1.1 is broadly consistent with the kinds of “maximum shift lengths” contemplated by cl 6.6.1. In particular, the text in the fourth, fifth and sixth rows of the table refers to actual shifts being worked up to particular numbers of hours “to complete assigned tasks”, which is the very circumstance that is expressly contemplated by cl 6.6.1. Between them, then, cll 6.6.1 and 4.1.1 operate to create “hard caps” on the number of hours that employees may actually be required to work in relation to (at least) the crew arrangements referred to in the fourth, fifth and sixth rows of the table. (As noted above, it is not necessary to decide the more difficult question of whether they should also be understood as creating “hard caps” in relation to the crew arrangements referred to in the first, second and third rows of the table. However, the terms of cl 4.1.4.5 may be thought to provide some support for such a construction.)

40    The view I have expressed about the operation of cl 4.1.1 is also generally consistent with, and thus to some extent supported by, other provisions in cl 4.1:

(1)    Clause 4.1.2 requires consultation in respect of shifts that approach the maximum shift length of 12 hours, including in relation to “the availability of suitable relief”. This is consistent with a requirement that crew members cease working and be relieved by the end of the prescribed maximum actual shift length.

(2)    Clause 4.1.4.4, although concerned with the “roster development process”, refers to it being “necessary” to “provide relief for crews who may exceed the twelve (12) hour shift limit”. While the use of the word “exceed” could potentially be read as contemplating employees working beyond 12 hours, I think on balance the better interpretation is that it is talking about circumstances in which, but for the making of appropriate provision to relieve the crew, the shift length would exceed 12 hours.

(3)    Clause 4.1.4.5 seems to me to be generally consistent with cl 4.1.1 creating “hard caps” on actual shift lengths. In terms, it prohibits employees being required to undertake any work once the shift length exceeds 12 hours, or nine hours for a driver only shift. While I think the general tenor of this clause is fairly clear, unfortunately, it also creates further uncertainty. In terms, cl 4.1.4.5 applies where shift lengths exceed nine hours for a “driver only shift” or (it would seem) 12 hours for any other shift. This seems impossible to fully reconcile with the table in cl 4.1.1, which provides for maximum shift lengths of 9 hours not only for driver only shifts but also for one kind of “Two Person Operation” (in the third row of the table), and which provides for a maximum shift length of 10 hours for a two-person operation with a trainee driver (in the fourth row of the table). It must be acknowledged that these situations do not appear to be adequately addressed by cl 4.1.4.5.

41    I do not regard the effect of these clauses as conclusive but, on balance, they tend somewhat in favour of the construction of cl 4.1.1 which I prefer. Again, I acknowledge that the terms of the Agreement – and those of Attachment 1, in particular – are not coherent, and its interpretation is a matter of trying to work out what seems to be the “best fit”.

42    There is no inconsistency between cl 13.1 in the body of the Agreement – which states that employees “will be credited with the hours shown in the Working Roster or actual hours worked … , whichever is the greater” – and the conclusion that cl 4.1.1 of Attachment 1 fixes limits on the maximum actual shift length. That is because Pacific National may roster employees to work shifts that are less than the maximum rostered shift length, in which case they may work additional hours beyond the rostered sign off time for that shift, up to the maximum actual shift length.

43    The next relevant clause in Attachment 1 is cl 4.3.1. It provides:

4.3    Maximum hours on Duty in Emergency Situations

4.3.1    Employees who are unable to complete their rostered shift because of an emergency must be relieved from duty and signed off after a maximum period of sixteen (16) hours. In these circumstances, emergency means a major equipment failure or operational emergency due to fire, flood, storm, earthquake, explosion, accident, derailment, epidemic or warlike action. The working of extended hours in this circumstance is subject to the crews’ indications of their fitness to continue.

44    Clause 4.3.1 obviously contemplates that actual shifts may run longer than any of the maximum shift lengths referred to in the table in cl 4.1.1, but it only provides for this occurring in circumstances where employees are “unable to complete their rostered shift because of an emergency”. Clause 4.3.1 contains quite an elaborate and prescriptive definition of what amounts to an “emergency” for the purpose of the clause.

45    In my view, the most natural and evident reason for a clause such as this is to recognise that factors beyond the control of Pacific National may mean that shifts which it would otherwise have been required to bring to an end sooner may need to be extended. That is, the maximum shift length of 16 hours, which applies only in the case of an emergency, operates as an exception to the maximum actual shift length that would otherwise apply, and extends the limit for shift lengths to 16 hours, principally for the benefit of the employer – rather than operating as a freestanding maximum shift length. The last sentence of cl 4.3.1 is also consistent with that understanding: the reference to “working of extended hours” suggests that the maximum actual shift length of 16 hours is longer than the maximum actual shift length that would otherwise apply.

46    Understood in this way, cl 4.3.1 adds further support for the conclusion that cl 4.1.1 prescribes “hard caps” on the actual shift lengths that may be worked. Moreover, cl 4.3.1 forms part of the suite of provisions in cl 4 which fix the usual limits that apply to shift lengths (via cl 4.1.1) and make provision for the extension of those limits in particular circumstances (ie, “emergencies” as defined).

47    I conclude that the better view is that cl 4.1.1 permits Pacific National to roster employees to work for up to the maximum shift length applicable to the crew arrangement for a particular shift. Pacific National may, of course, roster employees for shifts that are shorter than the maximum shift length. Clause 4.1.1 imposes “hard caps” on actual shift lengths, which prevent employees from working longer than the applicable cap. Because of infelicities and inconsistencies in the drafting of the Agreement, it is difficult to identify the relevant “hard caps” with certainty, but the better view is that the limits on actual shift lengths are:

(a)    for the crew arrangements described in the first, second and third rows of the table in cl 4.1.1, nine hours (although, as noted above, it is not necessary to finally decide this to dispose of the present appeal);

(b)    for the crew arrangement described in the fourth row of the table, 10 hours; and

(c)    for the crew arrangements described in the fifth and sixth rows of the table, 12 hours.

What obligation, if any, does cl 4.1.1 impose on Pacific National?

48    While I am satisfied that the intended effect of cl 4.1.1 is to create “hard caps” on actual shift lengths that may be worked by employees, I acknowledge the force of Vandongen J’s observations about the difficulty of identifying, with sufficient clarity, the content of an obligation imposed on Pacific National which is capable of being breached.

49    In particular, the language used in the table in cl 4.1.1 is permissive, rather than obligatory: “Actual shifts may be worked …”. However, as with cl 6.6.1, I think it is clear enough that the intention was to prohibit workers being required to continue to work past the number of hours that actual shifts may be worked. The drafting of these clauses in the passive voice, with the “Actual shifts” (rather than Pacific National) serving as their grammatical subject, also contributes to the difficulties in identifying with clarity the content of an obligation imposed on Pacific National.

50    The task of identifying the relevant obligation imposed on Pacific National with any precision is also perhaps made more difficult by the fact that the content of its duty has been expressed in different ways in the ARTBIU’s claim and in the declarations made by the deputy president. However, the legal obligation imposed by a term of an enterprise agreement, and capable of being breached by an employer or an employee, is not quite the same as, and should not be confused with, the acts or omissions that are alleged to constitute a contravention of the obligation in particular factual circumstances.

51    The fact that any obligation imposed on Pacific National must be discerned as a matter of construction, including to some extent by way of implication, may not necessarily prevent the conclusion that there is a “term” of the Agreement which creates an obligation that is capable of being breached. The identification of an implied obligation that is necessary to give effect to the intent disclosed by the text of an Agreement can still potentially be accommodated within the requirement that construction of the Agreement be “text based”.

52    I am inclined to read cll 6.6.1 and 4.1.1, together, as impliedly imposing an obligation on Pacific National not to cause employees to continue to work beyond the maximum shift length or “hard cap” that applies for the relevant shift. Practically, that would mean that, in order to avoid contravening that obligation, Pacific National would be required to ensure that employees are able to arrive at the “sign on/sign off” point and to sign off by the time which marks the end of the applicable maximum actual shift length.

53    However, in circumstances where the appeal should, in my view, be allowed on other grounds in any event, I would prefer not to express any concluded view of the question of whether cl 4.1.1 is capable of being construed (together with cl 6.6.1) as imposing an obligation on Pacific National which is capable of being contravened.

The interpretation of cl 14 of Attachment 1

54    Clause 14 of Attachment 1 to the Agreement provides:

14    3-Up Working

14.1    For the following sectors, the rostered Shift Length is 15 hours (sign on to sign off) for slow services: Slow services are defined as services for which the average running time is over 12 hours:

Kalgoorlie – Cook    
Cook – Port Augusta

14.2    Three locomotive drivers will be rostered for the entire shift. A travel van will be attached to each train to enable one driver to travel passenger, as required. The shift will be credited to the Duty Cycle at ordinary hours.

55    Unlike cl 4.1, there is nothing at all in the terms of cl 14 which refers to the “maximum” shift length, or to “actual” shift lengths. Rather, cl 14.1 makes express reference to “the rostered Shift Length”. It is difficult to read cl 14 as identifying anything that could operate as a limit on the maximum actual shift length.

56    The ARTBIU submits that the words in brackets in cl 14.1, “sign on to sign off”, serve to make it clear that the 15-hour shift length referred to in cl 14.1 is a maximum actual shift length, on the basis that the words “sign on to sign off” are “apt to describe events in the real world”. The deputy president seems to have accepted this submission, stating (at [103]):

[Pacific National] claims textual support from cl 14.1 of [Attachment 1] in relation to 3-up working. I do not agree. While the submission points to the descriptor “rostered” for 15-hour shift lengths, it overlooks the following explanatory phrase “(sign on to sign off)”, which indicates actual work time is limited.

57    I do not accept that the inclusion of the words “sign on to sign off” in brackets demonstrates that “actual work time is limited”. Those words simply reflect the fact that a shift is taken to commence at sign on and to end at sign off – and that is so whether what is being referred to is a rostered shift length or the actual length of a shift that is worked. There is nothing about those words that is inconsistent with cl 14.1 fixing only “the rostered Shift Length”, as its terms convey. A similar expression is also used in both cl 4.1.2 of Attachment 1 and cl 1.10.4 of Attachment 5, both of which are also plainly referring only to rostering. The most that can be said is that the drafter’s decision to insert the expression “sign on to sign off” in certain clauses of the Agreement appears to have been rather arbitrary.

58    Clause 15 of Attachment 1 is not directly in issue on the appeal, but, like cl 14, it addresses the atypical circumstances of shifts that relate to a particular rail corridor, and contemplates shift lengths that are longer than the usual maximum rostered shift lengths. Although it is structured differently from cl 14, cl 15 addresses a similar subject matter, and immediately follows cl 14. For these reasons, it has some relevance to the interpretation of cl 14. Clause 15 states:

15    4-Up Working

15.1    This clause only has application to the Port Augusta – Kalgoorlie corridor.

15.2    Through the Roster Development Process, trains may be nominated as Four Up Working as outlined in this clause in the following circumstances:

15.2.1    Trains that have an average train running time above 15 hours; or

15.2.2    Trains that are subject to service quality issues; or

15.2.3    Trains which have schedules increased on a temporary basis due to operational or business requirements; or

15.2.4    Trains that have 4 drivers rostered on them.

15.3    Four train crew will be rostered for the entire shift up to a maximum of 18 hours. This means at any time two train crew will be rostered to drive and two train crew will be at rest in the van. Crew changeover will occur between the eighth and ninth hour.

15.4    For hours worked in this configuration, all hours up to 18 hours will be credited to the Duty Cycle as follows:

i.    100% of time working and when resting in the van will be credited to the Duty Cycle.

15.5    Master Rosters will indicate the total shift length whether working or travelling.

15.6    Where a Four Up train is delayed beyond 18 hours for any reason, the following will apply:

15.6.1    The train crew will work consistent with Relay Working for the hours in excess of 18 hours; and

15.6.2    100% of those excess hours will count to the Duty Cycle, for both working time and resting time in the van.

15.7    Intervals between shifts will be the same as those specified in clause 5 of this Attachment, except where the 4UP converts to relay on the forward leg only, in which case the crew would be entitled to 12 hours off at Cook but on return to home base the minimum time off would remain 12 hours.

15.8    Trains that have an average running time of over 18 hours will be worked as Relay Working as prescribed in Attachment 7 of this Agreement.

15.9    Where a shift rostered as a 3 UP is worked as a 4 UP due to an additional driver travelling to or from Cook, no overtime will be paid if the shift goes over 15 hours.

59    The structure of Attachment 1, in which cl 4.3.1 appears as part of cl 4, suggests that it operates as an extension to the limits on maximum actual shift lengths fixed by cl 4.1, and not otherwise. If cl 4.3.1 had been intended to apply to the special circumstances of the shifts referred to in cl 14, it might be expected that it would have been placed in a standalone clause, rather than in a subclause of cl 4.

60    Further, cl 15 of Attachment 1 contemplates the rostering of a four-employee crew in relation to the Port Augusta – Kalgoorlie corridor for a shift length up to a maximum of 18 hours. Therefore, cl 4.3.1, which extends permissible actual shift lengths up to a maximum of 16 hours, could not sensibly apply to cl 15. Moreover, cl 15.6 expressly contemplates that a train may be delayed “beyond 18 hours for any reason” (ie, not just in “emergencies” as defined in cl 4.3.1) and makes provision for the train crew to “work … for the hours in excess of 18 hours”.

61    Also pertinent is the fact that cl 15.9 of Attachment 1 provides that, where a shift that had been rostered as a three-employee shift is instead worked by four employees, “no overtime will be paid if the shift goes over 15 hours”. This implies that, in the ordinary case of a three-employee crew in connection with the Kalgoorlie – Port Augusta corridor (being the case addressed by cl 14 of Attachment 1), the actual shift time may exceed 15 hours (ie, there is no “hard cap”) and the employees are to be paid overtime. As explained below, that is, in my view, precisely the intended, and actual, operation of item 1 of Attachment 6. So understood, item 1 operates harmoniously with cll 14 and 15.9 of Attachment 1.

62    Taken together, the structure of the Agreement, the lack of any clear identification of any maximum shift length in cl 14, the apparent intention that three-person crews may work for more than 15 hours in exchange for payment of overtime, and the impossibility of applying cl 4.3.1 in relation to the shifts referred to in cl 15, all lead me to conclude that cl 4.3.1 has no application in connection with the shifts covered by either cll 14 or 15. The explanation for this, as far as cl 14 is concerned, would seem to be that the sectors to which cl 14 applies are all sectors that involve the Port Augusta or Kalgoorlie depots, and that the 15-hour shifts referred to in cl 14 are therefore the “rostered 15 hour shift[s]” which are referred to in item 1 of Attachment 6. As I explain below, in my view, the provision made in item 1 is inconsistent with the imposition of any “hard caps” on actual shift length in respect of shifts to which it applies.

Attachment 6 operates as an exception to the scheme of “hard caps”, including cl 4.3.1

63    Attachment 6 is entitled “Local Agreements”. The introductory paragraphs read:

Due to unique circumstances at certain Intermodal depots, certain practices are undertaken to specifically deal with the individual needs of specific depots. Consequently, the following provisions, described below, shall apply only to the depots listed below notwithstanding anything else contained in this Agreement.

The specific details as outlined below will prevail over the main body of the Agreement and the Rostering provisions in Attachment 1 to the extent that there is any inconsistency and continue to apply.

64    The deputy president noted (at [115]) that the phrase “and continue to apply” at the end of the preamble to Attachment 6 “appears to be grammatically incorrect” but that “its likely meaning is to emphasise that the specific depot arrangements will continue to apply to the extent of any inconsistency”. I suspect that the explanation for the inclusion of those words may be that some or all of the “local arrangements” in Attachment 6 were already in place before the making and approval of the Agreement, and that the words “and continue to apply” are to be read as “and will continue to apply”, and were intended to make clear that, even if newly inserted or amended provisions in the Agreement were inconsistent with the arrangements set out in Attachment 6, the latter arrangements were to continue to prevail even over those newer provisions.

65    Notably, the provisions in Attachment 6 are expressed to prevail over the body of the Agreement and “the rostering provisions in Attachment 1” (which I interpret to mean any clause found in Attachment 1, which is described as “Rostering Guidelines”), but only “to the extent that there is any inconsistency”. Given the express recognition in Attachment 6 that its provisions may be inconsistent with some of the provisions in the body of the Agreement or in Attachment 1, there is no strong imperative to attempt to construe them all together so as to avoid inconsistency.

66    In Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2025) 187 ALD 342; [2025] FCA 39 at 347 [30], Lee J referred with approval to the description of the approach to assessing inconsistency between two parts of an industrial instrument which was given by Wheelahan J in Maribyrnong City Council v Australian Municipal, Administrative, Clerical and Services Union (2019) 369 ALR 704; [2019] FCA 773 at 721 [53]:

… [I]n order that there be inconsistency between the terms of Part A and Part B, the terms must be such that they cannot sensibly or fairly be read together. Within this concept, there may be terms of Part A which demonstrate an intent to cover a particular subject-matter to the exclusion of corresponding terms in Part B. In these events, the terms of Part A prevail.

(Emphasis added by Lee J.)

67    The remainder of Attachment 6 consists of a table comprised of 10 numbered items, of which only the first is directly relevant to the appeal. The level of detail in the items varies considerably. Most, including item 1, are rather sparse. The first item in the table is as follows:

68    The “rostered 12 hour shift[s]” referred to are two-employee shifts which are, as rostered, expected to last 12 hours (including, it would seem, any shifts expected to last more than 11 hours – see cl 4.1.4.3 of Attachment 1). That is, the “rostered 12 hours shift[s]” to which item 1 of Attachment 6 applies are those shifts within the sixth row of the table in cl 4.1.1 which are worked from the Port Augusta, Kalgoorlie or Perth depots. They are therefore shifts for which cl 4.1.1 of Attachment 1 (when read together with cl 6.6.1 of Attachment 1) would otherwise generally fix a maximum actual shift length of 12 hours.

69    Item 1 of Attachment 6 is inconsistent with the imposition of a “hard cap” of 12 hours on actual shift length, because it expressly contemplates employees working “hours in excess of 12 hours” and provides for those hours to “be treated as overtime and paid at overtime rates”. That is, item 1 does away with what would otherwise be a “hard cap” on actual shift lengths and replaces it with a different scheme under which employees may be required to work more than 12 hours, but on the basis that they will be compensated by the payment of overtime rates (even if, applying the general provisions about overtime in cl 16 of the body of the Agreement, those hours would not normally attract overtime rates). No doubt this scheme is designed to reflect the operational realities that may arise in connection with long rail services operating in remote areas of the country (eg, greater logistical difficulties for Pacific National in relieving the crew of a train that is substantially delayed).

70    The “rostered 15 hour shifts” to which item 1 applies are shifts of the kind referred to in cl 14 of Attachment 1, which is entitled “3-Up Working”. The operation of item 1 with respect to those shifts – providing for the payment of overtime rates for hours actually worked in excess of 15 hours – is consistent with cl 14.1 only providing for a “rostered Shift Length” of 15 hours (and making no reference to limits on actual shift lengths), and with the implicit recognition, in cl 15.9 of Attachment 1, that it is to be expected that overtime would be paid if a three-employee shift “goes over 15 hours”. The arrangement that is referenced in cl 15.9 is the same arrangement that is provided for in item 1 of Attachment 6.

71    I do not think it is really plausible to read item 1 of Attachment 6 – requiring the payment of overtime for hours in excess of 12 hours on a rostered 12-hour shift, and for hours in excess of 15 hours on a rostered 15-hour shift – as having application only in emergencies, as defined for the purposes of cl 4.3.1, where the maximum shift length is extended to 16 hours. If item 1 were intended to apply only in emergencies, I would expect it to say so. The evident purpose of Attachment 6 is to apply to “unique circumstances” at certain depots – in the case of item 1, the Port Augusta, Kalgoorlie and Perth depots – “to specifically deal with the individual needs of specific depots”. The natural reading of item 1 is that no “hard cap” on actual shift lengths applies in relation to the shifts described in item 1, and that employees are, instead, to be compensated by the payment of overtime rates if the actual working time for such shifts exceeds the maximum rostered shift length.

72    As I have endeavoured to explain above, I consider that cl 4.3.1 operates together with cl 4.1.1 so that cl 4.1.1 fixes both maximum rostered shift lengths and maximum actual shift lengths, and cl 4.3.1 then extends those limits on actual shift lengths to 16 hours, but only in the circumstances defined in cl 4.3.1 as “emergencies”. In all other cases, the maximum permissible actual shift length remains that fixed by cl 4.1.1. Once the place of cl 4.3.1 in that scheme is understood, it is apparent that it would make no sense for cl 4.3.1 to operate on a standalone basis, to impose a maximum actual shift length of 16 hours applicable in emergencies, if there were no shorter maximum. That is, cl 4.3.1 is only intended to operate to extend an otherwise-applicable maximum actual shift length (fixed by cl 4.1.1).

73    To hold that cl 4.3.1 operates to impose a 16-hour “hard cap” on actual shift lengths in emergencies, in relation to shifts for which item 1 of Attachment 6 excludes the 12-hour limit on actual shift length that would otherwise apply, would fundamentally change the operation of cl 4.3.1 from a special extension of otherwise applicable “hard caps” in cases of emergencies to a freestanding hard cap that applies only in emergencies. It follows that, when item 1 of Attachment 6 applies to a particular 12-hour shift, it is inconsistent with – and therefore prevails over – the whole scheme for the fixing and extension of maximum actual shift lengths, including cl 4.3.1.

74    In summary, in my view, the effect of item 1 of Attachment 6 is that, for the services to which it applies, employees in crews of two or three may be required to work in excess of the maximum rostered shift limits of 12 hours fixed by cl 4.1.1 of Attachment 1 (in the case of crews of two) or of 15 hours fixed by cl 14.1 of Attachment 1 (in the case of crews of three). Instead of there being a limit on the actual shift length for those shifts, employees may be required to work longer than the maximum rostered shift length, with additional hours “treated as overtime and paid at overtime rates”, irrespective of whether they would otherwise be treated as overtime in accordance with cl 16 of the body of the Agreement. That scheme is inconsistent with the provisions of cll 4.1.1 and 4.3.1 of Attachment 1 insofar as they fix limits on actual shift lengths.

Consideration of the grounds of appeal

75    By ground 1 of its appeal, Pacific National contends that:

… the learned deputy president erred in construing clause 4 of Attachment 1 of the Agreement as imposing an obligation on Pacific National to relieve, and have signed off from duty, employees on a two-person operation by the end of their rostered 12 hour shift, whereas the only applicable limitation was the length of the shift as rostered.

76    As I have explained at [23]-[47] above, I disagree with Pacific National’s position that cl 4.1.1 of Attachment 1 creates no limit on actual shift lengths and only limits the length of rostered shifts.

77    And, as explained at [48]-[53] above, I also tend to think that the better view may be that cl 4.1.1 (read together with cl 6.6.1) can and should be understood as creating an obligation on Pacific National to cause employees to be relieved (that is, giving them the occasion to sign off) from a shift at or before the end of the applicable maximum actual shift length. However, it is not necessary to reach a final view as to whether cl 4.1.1 imposes an enforceable obligation on Pacific National, or to finally decide whether ground 1 of the appeal should be upheld on the basis that it does not.

78    By ground 2 of its appeal, Pacific National contends that:

… the deputy president erred in construing clause 14 of Attachment 1 of the Agreement as imposing an obligation on Pacific National to relieve and have signed off from duty employees on a three-person operation on the Cook-Port Augusta service by the end of their rostered 15 hour shift, whereas the only applicable limitation was the length of the shift as rostered.

79    For the reasons I have given at [54]-[62] above, I do not consider that cl 14 of Attachment 1 is capable of being construed as imposing a limit on actual (as opposed to rostered) shift lengths. It follows that ground 2 of the appeal should be upheld.

80    By ground 3 of its appeal, Pacific National contends that:

… to the extent that clause 4 and/or 14 of Attachment 1 of the Agreement provided for limits on actual hours worked on a shift, as to all declared contraventions the deputy president erred in failing to find that item 1 of Attachment 6 of the Agreement (Local Agreements), in providing for overtime payments for the relevant employees (at Port Augusta depot) for hours in excess of rostered shift limits of 12 hours (for two-person operations) and 15 hours (for three-person operations), was inconsistent with such limitations and prevailed over such limitations to the extent of that inconsistency.

81    Ground 4 of the appeal relates to the question of whether item 1 of Attachment 6 is inconsistent with, and therefore operates to the exclusion of, cl 4.3.1 of Attachment 1. By that ground, Pacific National contends that:

… the deputy president erred in failing to find that item 1 of Attachment 6 of the Agreement, in providing for overtime payments for hours in excess of rostered shift limits of 12 hours (for two-person operations) and 15 hours (for three-person operations), was inconsistent with the 16 hour limit on actual hours in an emergency situation in clause 4.3 of Attachment 1 of the Agreement and prevailed over such a limitation to the extent of that inconsistency.

82    For the reasons that I have explained at [63]-[74] above, the better view is that item 1 of Attachment 6, in providing for overtime payments for hours in excess of rostered shift limits, is inconsistent with absolute limits or “hard caps” on the actual shift length in relation to shifts to which item 1 of Attachment 6 applies. Clause 4.3.1 of Attachment 1 operates to extend the limits otherwise imposed by cl 4.1.1, but only in cases of emergency. Both provisions form part of an overall scheme providing for hard caps applicable to certain kinds of shifts. Item 1 of Attachment 6 is inconsistent with that scheme applying to the kinds of shifts referred to in item 1.

83    It follows that grounds 3 and 4 of the appeal should be upheld.

84    Grounds 5, 6 and 7 of the appeal relate to factual findings made by the deputy president in connection with the application of cl 4.3.1 of Attachment 1 in the circumstances that unfolded in respect of particular shifts. Since I have concluded that, in relation to all the shifts which are the subject of this appeal, item 1 of Attachment 6 operates to the exclusion of the provisions of Attachment 1 which establish a scheme of limits on actual shift lengths – including the “emergency” provision in cl 4.3.1 which forms an integrated part of that scheme – it is unnecessary to determine grounds 5, 6 and 7.

85    It is also not strictly necessary to determine ground 8 of the appeal, concerning the application of s 557A of the FW Act and the deputy president’s conclusion that several of the contraventions of the Agreement (and thus of s 50 of the FW Act) which he found to have been established were “serious contraventions”. However, I agree with the reasons given by Vandongen J for concluding that, if it were necessary to decide, ground 8 should be upheld.

Conclusions

86    For the reasons given above, I would uphold grounds 2, 3 and 4 of the appeal (and, if it were necessary to decide, ground 8). I agree with the orders proposed by Vandongen J.

Associate:

Dated:    9 October 2026

REASONS FOR JUDGMENT

VANDONGEN J:

87    The appellant, Pacific National Pty Ltd (Pacific National), provides long-distance rail transport services across Australia for containerised freight of a range of products and materials. Relevant employees of Pacific National who are employed as train drivers are covered by the Pacific National Services Intermodal Train Crew Enterprise Agreement 2021 (Enterprise Agreement).

88    By proceedings commenced in the South Australian Employment Tribunal sitting as the South Australian Employment Court (Employment Court), the respondent, the Australian Rail, Tram and Bus Industry Union (ARTBIU), alleged that Pacific National contravened various terms of the Enterprise Agreement by failing to relieve from duty and sign off certain employees within maximum shift lengths. The Employment Court made several declarations that Pacific National had contravened the Enterprise Agreement because it did not relieve from duty and sign off identified employees, thereby contravening s 50 of the Fair Work Act 2009 (Cth) (FW Act). Further declarations were made that some of those contraventions were 'serious contraventions' for the purposes of s 557A of the FW Act.

89    The appellant appeals against the declarations made by the Employment Court on several grounds. Most of those grounds are concerned with the proper construction of a handful of clauses of the Enterprise Agreement. However, some of the grounds assert that the Employment Court made factual errors in relation to two of its declarations, and one ground is concerned with the Employment Court's conclusion that several of the contraventions were 'serious contraventions' for the purposes of s 557A of the FW Act.

90    Although this appeal was commenced by Pacific National Pty Ltd, there is some confusion in the material before this Court about the identity of the correct appellant. According to cl 2.1 of the Enterprise Agreement, the relevant parties to that agreement are Pacific National (NSW) Pty Ltd (Pacific National (NSW)) and Pacific National Services Pty Ltd (Pacific National Services). However, the proceedings in the Employment Court were seemingly commenced against Pacific National, and declarations were made in relation to that entity, but the response to the ARTBIU's written application in that Court was lodged by Pacific National Services. Further, in a statement of agreed facts that was filed in the Employment Court, only Pacific National Services was referred to as the relevant employer. As no issue was taken by either party concerning the identity of the correct appellant, I will proceed on the basis that these proceedings are concerned with the question of whether Pacific National contravened the Enterprise Agreement.

91    In my view the appeal must be allowed and the orders and declarations made by the Employment Court must be set aside. However, before explaining why I have reached that conclusion, it is necessary to say something about this Court's jurisdiction to hear and determine an appeal from the Employment Court.

This Court's jurisdiction

92    Although there was no dispute that this Court has jurisdiction to hear and determine Pacific National's appeal against the declarations made by the Employment Court, it is necessary to explain why I am of the view that the approach taken by the parties was correct.

93    Section 539(1) of the FW Act, and Item 4 in the table in s 539(2), provide that s 50 is a civil remedy provision. Relevantly, by operation of those provisions an employee organisation to which an enterprise agreement applies may apply to an 'eligible State or Territory court' in relation to a contravention of s 50 of the FW Act. An 'eligible State or Territory court' includes the Employment Court: reg 1.05(b) of the Fair Work Regulations 2009 (Cth).

94    This appeal was brought under s 565 of the FW Act, subs (1) of which provides that an appeal lies to the Federal Court from a decision of an 'eligible State or Territory court exercising jurisdiction under' the FW Act. As the Employment Court was exercising jurisdiction under the FW Act when it made the various declarations to which I have already referred, this Court has jurisdiction to entertain the appeal.

95    Section 565(2) provides that it is not necessary to obtain leave in relation to an appeal under s 565(1). Further, as the Employment Court was constituted by a Deputy President, the jurisdiction of this Court must be exercised by a Full Court: Shahin Enterprises Pty Ltd v Mathew [2020] FCAFC 57; (2020) 274 FCR 557 at [88] to [99].

96    Having dealt with this Court's jurisdiction to hear and determine this appeal, it is then convenient to summarise the proceedings before the Employment Court. However, it is only necessary to provide a brief summary of those proceedings. This is because the issues raised by the grounds of appeal are mainly concerned with the proper construction of certain clauses in the Enterprise Agreement, which is a matter for this Court to determine: Triple Zero Victoria v Morton-Pederson [2025] FCA 419 at [31]. The reasons of the Employment Court will be further elucidated later in these reasons to the extent that it may be necessary to deal with each of the grounds of appeal.

The proceedings before the Employment Court

97    In the proceedings before the Employment Court the ARTBIU alleged that Pacific National contravened s 50 of the FW Act on 11 separate occasions. The specific allegations that the Employment Court was ultimately required to determine were formulated by the ARTBIU in the following way in its 'AMENDED DETAILS OF ALLEGED CONTRAVENTION OF A CIVIL REMEDY PROVISION', which was appended to its application for a pecuniary penalty:

Contravention 1

On 16 February 2023, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 4.1.1 of the [Enterprise Agreement], by failing to sign off [two of] their employees off duty within the [12-hour] maximum rostered shift length.

…

The employees signed off from duty 45 minutes after their maximum shift limit.

Contravention 2

On 28 February 2023, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 14.1.1 [sic - cl 14.1] of the [Enterprise Agreement], by failing to sign off [three of] their employees off duty within the [15-hour] maximum rostered shift length.

[Note: The reference to 'Clause 14.1.1' is erroneous. This is because that clause does not exist. In all of the circumstances, that reference may be taken to have been to cl 14.1.]

…

The employees signed off from duty two hours after their maximum shift limit.

In the alternative, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 4.3.1 of the [Enterprise Agreement], by failing to sign off their employees off duty within 16 hours.

Contravention 3

On 8 March 2023, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 4.1.1 of the [Enterprise Agreement], by failing to sign off [two of] their employees off duty within the [12-hour] maximum rostered shift length.

…

The employees signed off from duty 10 minutes after their maximum shift limit.

Contravention 4

On 4 May 2023, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 4.1.1 of the [Enterprise Agreement], by failing to sign off [two of] their employees off duty within the [12-hour] maximum rostered shift length.

…

The employees signed off from duty 1 hour and 13 minutes after their maximum shift limit.

Contravention 5

On 6 May 2023, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 14.1.1 [sic - cl 14.1] of the [Enterprise Agreement], by failing to sign off [three of] their employees off duty within the [15-hour] maximum rostered shift length.

[Note: The reference to 'Clause 14.1.1' is erroneous. This is because that clause does not exist. In all of the circumstances, that reference may be taken to have been to cl 14.1.]

…

The employees signed off from duty 1 hour after their maximum shift limit.

Contravention 6

On 6 May 2023, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 4.1.1 of the [Enterprise Agreement], by failing to sign off [two of] their employees off duty within the [12-hour] maximum rostered shift length.

…

The employees signed off from duty 4 hours and 30 minutes after their maximum shift limit.

In the alternative, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 4.3.1 of the [Enterprise Agreement], by failing to sign off [two of] their employees off duty within 16 hours.

Contravention 7

On 31 May 2023, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 4.1.1 of the [Enterprise Agreement], by failing to sign off [two of] their employees off duty within the [12-hour] maximum rostered shift length.

…

The employees signed off from duty 4 hours and 15 minutes after their maximum shift limit.

In the alternative, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 4.3.1 of the [Enterprise Agreement], by failing to sign off their employees off duty within 16 hours.

Contravention 8

On 22 June 2023, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 4.1.1 of the [Enterprise Agreement], by failing to sign off [two of] their employees off duty within the [12-hour] maximum rostered shift length.

…

The employees signed off from duty 15 minutes after their maximum shift limit.

Contravention 9

On 22 June 2023, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 4.1.1 of the [Enterprise Agreement], by failing to sign off [one of] their employees off duty within the [9-hour] maximum rostered shift length.

…

The employee signed off from duty 1 hour and 30 minutes after his maximum shift limit.

Contravention 10

On 28 June 2023, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 14.1.1 [sic - cl 4.1.1] of the [Enterprise Agreement], by failing to sign off [two of] their employees off duty within the [12-hour] maximum rostered shift length.

[Note: the terms of this alleged contravention asserted that 'Clause 14.1.1' was contravened. However, it seems clear that this was a typographical error].

…

The employees signed off from duty 2 hours after their maximum shift limit.

Contravention 11

On 6 July 2023, [Pacific National] contravened s. 50 of the FW Act by contravening Attachment 1 Clause 4.1.1 of the [Enterprise Agreement], by failing to sign off their employee off duty within the [9-hour] maximum rostered shift length.

…

The employee signed off from duty 1 hour and 50 minutes after his maximum shift limit.

(bold headings inserted)

98    In the balance of these reasons, I will refer to the respective contraventions as outlined above.

99    It may be noted that in relation to contraventions 2, 6 and 7, the ARTBIU appeared to rely on alternative grounds for asserting that Pacific National had contravened the Enterprise Agreement. However, that is not the way in which the ARTBIU or Pacific National conducted the case before the Employment Court or, for that matter, on appeal. I will discuss this aspect of the ARTBIU's case later in these reasons.

100    A contravention of s 50 of the FW Act is a contravention of a 'civil remedy provision'. A person who contravenes a civil remedy provision is liable to be made subject to orders under Pt 4.1 of the FW Act, including a pecuniary penalty ordered under s 539.

101    The ARTBIU alleged that each of the above contraventions was a 'serious contravention' for the purposes of s 557A of the FW Act. At the relevant time, s 557A(1) provided that a contravention of a civil remedy provision by a person was a 'serious contravention' if: (a) the person knowingly contravened the provision; and (b) the person's conduct constituting the contravention was 'part of a systematic pattern of conduct relating to one or more other persons'. Then, as now, a 'serious contravention' attracts a higher maximum pecuniary penalty.

102    The proceedings before the Employment Court were conducted based on a statement of agreed facts and no other evidence was adduced. A copy of that statement of agreed facts is annexed to these reasons for ease of reference. It may be seen that, apart from the first few agreed facts, there was very little evidence of the industrial context within which the Enterprise Agreement operated.

103    Having regard to the way in which the parties conducted the proceedings, there were four broad issues that the Deputy President determined. To assist in understanding those issues, it is first necessary to briefly say something about the Enterprise Agreement.

104    The Enterprise Agreement is comprised of nine parts. The first part, which in some places in the Enterprise Agreement is referred to as the 'main body of the Agreement', contains various terms and conditions that might be expected in any enterprise agreement. However, it is obvious that many of the clauses in the 'main body' of the Enterprise Agreement are specifically tailored to the particular work undertaken by the employees of Pacific National who are covered by the Enterprise Agreement.

105    The remaining eight parts of the Enterprise Agreement are referred to as 'Attachments'. For present purposes it is only necessary to observe that the relevant clauses of the Enterprise Agreement that the ARTBIU alleged were contravened by Pacific National can be found in the first of those attachments, which is entitled 'ATTACHMENT 1 - ROSTERING GUIDELINES'.

106    Against that background, the first issue determined by the Deputy President was whether two clauses in Attachment 1 of the Enterprise Agreement (cll 4.1.1 and 14.1) impose limits on the actual shift lengths that can be worked by Pacific National employees or whether those clauses only set 'predictive rostered shift lengths'. That is, whether those clauses impose a 'hard cap' on the period during which an employee can work or whether they only impose a limit on the length of a shift that can be rostered by Pacific National. As the Deputy President said at para 4 of his reasons for decision, '[i]f the [Enterprise Agreement] did not impose limits on the actual time worked, there was no breach'.

107    In relation to this issue the Deputy President concluded in effect, that, on their proper construction, both cll 4.1.1 and 14.1 imposed maximum limits on the number of hours that may be worked by the relevant employees covered by the Enterprise Agreement.

108    The second issue was whether the shift limits the Deputy President found were imposed by cll 4.1.1 and 14.1 in Attachment 1 of the Enterprise Agreement applied to employees who were based at Port Augusta. It was common ground that the employees who were the subject of the contraventions were based at Port Augusta. Pacific National contended that if, which it denied, cll 4.1.1 and 14.1 did impose maximum shift lengths then Attachment 6 of the Enterprise Agreement prevailed over those limits by allowing for overtime to be paid for shifts that exceeded those limits. However, the Deputy President rejected Pacific National's contention and found that Attachment 6 did not apply because it was not inconsistent with either cll 4.1.1 or 14.1 of Attachment 1.

109    The third issue was whether the Enterprise Agreement was contravened in circumstances in which, although employees had exceeded the maximum shift lengths found to have been imposed by cll 4.1.1 and 14.1 of Attachment 1, the delays in completing those shifts were caused by emergencies. This issue focussed on cl 4.3 in Attachment 1 of the Enterprise Agreement, which provides that employees who are unable to complete their shift because of an emergency must be relieved from duty and signed off after a maximum of 16 hours.

110    At this point it is important to recall that contraventions 2, 6 and 7 were particularised in the ARTBIU's written application that was lodged in the Employment Court as including, as an alternative to alleged contraventions of cll 4.1.1 and 14.1, an alleged contravention of cl 4.3.1 of Attachment 1 of the Enterprise Agreement. However, that is not the way in which the proceedings were conducted in the Employment Court or on appeal.

111    Before the Employment Court, counsel for both the ARTBIU and Pacific National made oral submissions to the effect that cl 4.3 was an exception to or an excuse for any contravention of cll 4.1.1 and 14.1, which the Deputy President found had been established on the basis of the agreed facts. In that context the parties proceeded on the basis that cl 4.3 only arose for consideration by the Deputy President if Pacific National was found to have contravened cll 4.1.1 or 14.1, where relevant, and they joined issue on the question of whether Pacific National had established the existence of what were considered to be certain preconditions to the operation of cl 4.3.

112    Obviously encouraged by the way in which the parties had conducted the hearing, the Deputy President also proceeded on the basis that cl 4.3 operated as an exception or excuse that was potentially available to Pacific National in defence of any established contravention of cll 4.1.1 or 14.1. That this was the approach taken by the Deputy President can be seen at para 8 of his reasons for decision, where he said:

If the train drivers' actual work time was limited by the [Enterprise Agreement], including work out of the Port Augusta depot, the issue is whether the delays to completing shifts were caused by a genuine emergency on each occasion, as alleged in the alternative by [Pacific National]. If there was no emergency the shifts limits were breached.

(emphasis added)

113    The Deputy President's reasons for concluding that Pacific National had, on eight occasions, contravened the Enterprise Agreement also demonstrate that he considered that the question he was required to determine was, if he found that cll 4.1.1 and 14.1 did impose maximum shift lengths, whether Pacific National had established that those contraventions were excused by cl 4.3. In that regard, when the Deputy President separately dealt with each alleged contravention, he did so by focussing almost entirely on the question of whether the agreed facts established that the maximum shift lengths were exceeded because of a relevant emergency.

114    Thus, the Deputy President's findings that contraventions 1, 9 and 11 had not been established were made because he was satisfied that Pacific National had established that the 'exception' in cl 4.3 was engaged because the relevant employees were not able to complete their shifts because of emergencies. Further, in relation to the balance of the contraventions on which the ARTBIU relied, the Deputy President found that Pacific National had contravened the Enterprise Agreement because it had failed to establish that cl 4.3 applied.

115    In relation to contraventions 2, 6 and 7, the Deputy President also appeared to have been unpersuaded that cl 4.3 applied because the employees who were the subject of those contraventions were not, in any event, relieved from duty and signed off within the 16-hour period allowed for by that clause. However, it must be said that some of the Deputy President's reasoning reads as if he also concluded that Pacific National also contravened cl 4.3. I will return to deal with this issue in more detail later in these reasons in the context of ground 4.

116    The fourth issue was whether any of the contraventions found to have been established were 'serious contraventions' for the purposes of s 557A of the FW Act. In this respect, the Deputy President found that contraventions 2 to 7 and 10 were 'serious contraventions' and made a separate declaration to that effect.

117    Having identified the issues that were determined in the Employment Court, it is convenient to turn to the grounds of appeal on which Pacific National relies.

Grounds of appeal

118    Pacific National relies on eight grounds of appeal. Those grounds can be summarised as follows:

Ground 1

119    As to contraventions 3, 4, 6, 7, 8 and 10 (which correspond with the declarations made by the Deputy President that were numbered 2, 3, 5, 6, 7 and 8), Pacific National contends that the Deputy President erred in construing cl 4.1 of Attachment 1 of the Enterprise Agreement as imposing an obligation on Pacific National to relieve, and have signed off from duty, employees on a two-person operation by the end of their rostered 12-hour shift. Pacific National argues that the only applicable limitation imposed by that clause was the length of the shift as rostered. The issue between the parties in the context of this ground of appeal is whether cl 4.1 of Attachment 1 of the Enterprise Agreement imposed a limit on the number of hours that relevant employees could work or whether it only imposed a limit on the length of a shift that Pacific National could roster.

Ground 2

120    By this ground Pacific National makes the same contention it makes in the context of ground 1, except it is concerned with cl 14.1 of Attachment 1 of the Enterprise Agreement, and with contraventions 2 and 5 (corresponding with declarations numbered 1 and 6). Pacific National contends that the Deputy President erred by finding that cl 14.1 imposes an obligation on Pacific National to relieve and have signed off from duty employees on a three-person operation on the Cook-Port Augusta service by the end of their rostered 15-hour shift, arguing that the only applicable limitation was the length of the shift as rostered.

121    Before moving on to the third ground of appeal it is necessary to note that the Deputy President made eight declarations in relation to contraventions 2 to 8 and 10, which were in relevantly identical terms:

…on [date] [Pacific National] contravened the [Enterprise Agreement] in that it did not relieve from duty and sign off employees on [train service number] within the maximum shift length permitted by Attachment 1 of the [Enterprise Agreement].

122    It may be observed that, although the ARTBIU alleged that Pacific National had contravened cl 4.1.1 in relation to certain contraventions and in relation to other contraventions it was alleged that it had contravened cl 14.1, the declarations made by the Employment Court merely asserted that the Enterprise Agreement had been contravened. The declarations did not identify the particular 'term' of the Enterprise Agreement that the Deputy President found had been contravened. However, as the terms of grounds 1 and 2 demonstrate, the parties conducted the appeal on the basis that, where the declarations appealed from provide that Pacific National contravened the Enterprise Agreement, those declarations should be understood as to declarations that Pacific National contravened cl 4.1.1 (in relation to contraventions 3, 4, 6, 7, 8 and 10) and cl 14.1 (in relation to contraventions 2 and 5) of Attachment 1.

Ground 3

123    This ground is expressed to be in the alternative to grounds 1 and 2 and therefore proceeds on the assumption that the Court has rejected grounds 1 and 2. Pacific National argues that any limits on the actual hours that can be worked are those provided for in Item 1 of Attachment 6 of the Enterprise Agreement, and not those in cll 4.1.1 or 14.1 of Attachment 1. Pacific National argues that this is because Attachment 6 provides that it prevails over cll 4.1.1 and 14.1 of Attachment 1 to the extent there is any inconsistency.

Ground 4

124    This ground is concerned only with contraventions 2, 6 and 7 (corresponding with declarations numbered 2, 5 and 6). This ground mirrors ground 3, except that it asserts that Item 1 of Attachment 6 of the Enterprise Agreement is inconsistent with cl 4.3 of Attachment 1 and therefore prevailed over that clause to the extent of any inconsistency, in particular, to the extent that it imposed a 16-hour limit on actual hours worked in circumstances of emergency. Like ground 3, this ground also proceeds on the assumption that the Court has rejected grounds 1 and 2.

Grounds 5, 6 and 7

125    By these grounds, Pacific National contends that the Deputy President made various factual errors in connection with his conclusions that contraventions 3, 5 and 10 had been made out.

Ground 8

126    By this ground, Pacific National contends that the Deputy President made several errors in reaching the conclusions that contraventions 2 to 7 and 10 were 'serious contraventions' for the purposes of s 557A of the FW Act.

127    Grounds 5 to 8 proceed on the assumption that grounds 1 to 4 have been rejected.

128    Having identified the grounds of appeal on which Pacific National relies, it is convenient to deal with each of those grounds in turn.

Grounds 1 and 2

129    As these two grounds raise essentially the same issues they can be dealt with at the same time. Together, grounds 1 and 2 challenge all of the Deputy President's declarations that Pacific National:

contravened the [Enterprise Agreement] in that it did not relieve from duty and sign off employees on [train service number] within the maximum shift length permitted by Attachment 1 of the [Enterprise Agreement].

As I have already observed, if both of these grounds are established then all of the Deputy President's declarations must be set aside and the other grounds of appeal will not need to be determined.

130    The starting point for considering grounds 1 and 2 is s 50 of the FW Act. Section 50 provides that '[a] person must not contravene a term of an enterprise agreement' (emphasis added).

131    The meaning of the word 'contravention', albeit in the context of s 138 of the Evidence Act 1995 (NSW), was discussed by French CJ in Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494 at [29] to [30] including by reference to the Oxford English Dictionary meaning, which is '[t]he action of contravening or going counter to; violation, infringement, transgression'. At [30] of Parker French CJ said:

Without essaying an exhaustive definition, the core meaning of 'contravention' involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention.

132    The above passage taken from Parker was referred to by Allsop CJ in Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union [2019] FCAFC 84; (2019) 270 FCR 359 at [15], a case which was concerned with alleged contraventions of s 50 of the FW Act. In that case, Allsop CJ (with whom Rangiah J relevantly agreed at [358]) said at [16]:

Whilst the word 'contravention' is capable of a wide meaning, in the context of a civil remedy provision which includes the possible imposition of a civil penalty the word includes the notion of violating or infringing a rule or obligation or standard which is required. One would not assume or conclude that Parliament would provide for the imposition of a penalty for doing or not doing something that one was not obliged not to do or not obliged to do. One does not, in my view, contravene a non-obligatory term of an arrangement.

(emphasis added)

133    Recently, in Lattouf v Australian Broadcasting Corporation (Penalty) [2025] FCA 1174, Rangiah J considered what will amount to a contravention of a term of an enterprise agreement for the purposes of s 50 of the FW Act. At [25] to [30] of that case his Honour made the following observations:

Section 50 of the [FW Act] provides that, 'A person must not contravene a term of an enterprise agreement'. On each occasion a person 'contravenes a term', the person contravenes s 50. That raises a question as to whether each of [the relevant clauses of the enterprise agreement], is 'a term' of the Enterprise Agreement, such that a contravention of each of them, through essentially the same action or inaction, is a separate contravention of s 50.

In Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union (2019) 270 FCR 359, Allsop CJ held at [16]:

'Whilst the word "contravention" is capable of a wide meaning, in the context of a civil remedy provision which includes the possible imposition of a civil penalty the word includes the notion of violating or infringing a rule or obligation or standard which is required. One would not assume or conclude that Parliament would provide for the imposition of a penalty for doing or not doing something that one was not obliged not to do or not obliged to do. One does not, in my view, contravene a non-obligatory term of an arrangement.'

Accordingly, a contravention of s 50 of the [FW Act] requires a contravention of an obligation under an enterprise agreement that is binding on a party.

The expression 'terms' is frequently used in the [FW Act] in relation to enterprise agreements. For example, s 55 provides that certain 'terms' may be included in an enterprise agreement and also deals with the interaction between 'terms' of an enterprise agreement and a modern award. The Fair Work Commission is required, under s 186(2)(c) to be satisfied that 'the terms of the agreement' do not contravene s 55 and, under s 186(4), that the agreement does not include any 'unlawful terms'. However, the expression 'terms' is not defined.

It is evident that an enterprise agreement must be in writing: see, for example, s 185(2) of the [FW Act]. Halsbury's Laws of Australia states at [110-2001], 'When used in its most general sense, the word "term" describes any clause or provision in a contract'. An enterprise agreement is not, of course, a contract, but it can be accepted the expression 'a term' in s 50 refers to a clause of an enterprise agreement. The expression refers, more particularly, to a clause that imposes an obligation on a party.

In Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216, Gray J observed at 223 that, 'The ascertainment of what is a term should depend not on matters of form, such as how the award maker has chosen to designate by numbers or letters the various provisions of an award, but on matters of substance, namely the different obligations which can be spelt out'. The question of whether a clause of an enterprise agreement is 'a term' must depend, not merely upon the way the clause has been drafted, but also the substance of the obligations imposed by the clause.

(emphasis added)

134    The ARTBIU bore the onus of proving the elements of each of the specific contraventions that it alleged against Pacific National: Director of the Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147 at [25]. Further, the Employment Court was required to apply the rules of evidence and procedure for civil matters: s 551 of the FW Act. It follows that the ARTBIU was required to prove, to the civil standard, that Pacific National had engaged in conduct that amounted to a violation or infringement of the particular obligations that the ARTBIU alleged were imposed on Pacific National under specific terms of the Enterprise Agreement.

135    Whether the terms on which the ARTBIU relied were terms of the Enterprise Agreement, for the purposes of s 50 of the FW Act, and whether the conduct in which Pacific National had engaged amounted to a violation or infringement of the particular obligations alleged to have been imposed by those terms, depended on the proper construction of the Enterprise Agreement.

136    The principles relating to the proper construction of enterprise agreements are not in dispute.

137    Enterprise agreements are neither contracts nor legislative instruments, but are instruments given the force of law. In Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 the Full Court said at [88]:

Under the FW Act, an enterprise agreement is an agreement in name only. Those who, by s 172(2), are empowered to 'make' an enterprise agreement are the employer and 'the employees who are employed at the time the agreement is made and who will be covered by the agreement'. A contract lawyer would assume that those persons would be parties to the agreement, and that the assent of all of them would be necessary for the agreement to be 'made'. But the lawyer would be wrong on both counts. The FW Act does not identify the employer, or any employee, as a 'party' to an enterprise agreement. Further, notwithstanding the specific empowering terms of s 172, it is not necessary for all the employees who are employed at the time an agreement is made and who will be covered by the agreement to assent to the terms of the agreement. Once a majority of those employees have agreed by voting, the agreement must be sent to the Commission for approval and, if approved, thenceforth applies to all the employees in the relevant group, even those who did not agree, and even those, subsequently taken into employment, who were not part of the relevant group at the time the vote was taken under s 182.

138    In WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] the Full Court explained the approach to be taken to construing enterprise agreements in the following manner:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation 'turns on the language of the particular agreement, understood in the light of its industrial context and purpose'. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a 'practical bent of mind' and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.

(citations omitted; emphasis added)

139    The following further summary of the relevant principles was also provided by Griffiths and SC Derrington JJ in James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 at [65]:

(i)    The starting point is the ordinary meaning of the words, read as a whole and in context [including the industrial context] (City of Wanneroo v Holmes (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]).

(ii)    A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a 'practical bent of mind' (Kucks v CSR Ltd (1996) 66 IR 182 at 184; Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]). The interpretation 'turns upon the language of the particular agreement, understood in the light of its industrial context and purpose' (Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2]).

(iii)    Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]). It may extend to '… the entire document of which it is a part, or to other documents with which there is an association' (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175 at 178).

(iv)    Context may also include '…ideas that gave rise to an expression in a document from which it has been taken' (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518).

(v)    Recourse may be had to the history of a particular clause 'Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form …' (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518).

(vi)    A generous construction is preferred over a strictly literal approach (George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]), but 'Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties' (City of Wanneroo v Holmes (1989) 30 IR 362 at 380).

(vii)    Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]).

140    See also Australian Workers' Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107 at [12].

141    However, more recently in OS ACPM Pty Ltd v Mining and Energy Union [2026] FCAFC 59 which was a case concerned with an award, Raper and Shariff JJ said at [28] that care must be exercised to ensure that these principles are not indiscriminately applied to all industrial agreements, without accounting for differences in the nature of those instruments and how they have evolved over time under different statutory regimes regulating Australian industrial and workplace relations.

142    It is also important to note that, as Colvin J observed in a case that concerned an alleged failure to comply with an enterprise agreement, Qube Ports Pty Ltd v Construction, Forestry and Maritime Employees Union [2026] FCA 978 at [32]:

The industrial purpose is to be derived from the terms of the instrument (and relevant surrounding matters of context). It is not correct to begin the construction task by positing some form of purpose: Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187; (2025) 314 FCR 187 at [53] (Wheelahan, Jackson and Dowling JJ). 'A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award': Kucks v CSR Ltd (1996) 66 IR 182 (Madgwick J), approved and applied in Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 at [39]-[41] (Siopis, Buchanan and Flick JJ).

(emphasis added)

143    The proper construction of a term of an enterprise agreement is a question of law for which there is only one answer. Accordingly, this Court is not concerned with the Deputy President's reasons for reaching his conclusions about the proper construction of the Enterprise Agreement. As Perram J observed in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 at [45] (Allsop CJ and Markovic J agreeing at [2] and [169], respectively):

At one extreme, where no deference at all is shown to a trial judge's conclusions, are errors of law. An appellate court is not influenced in its view of the law by the conclusions of a trial judge and, in this case, mere disagreement on the part of the appellate court with the trial judge will justify the conclusion that an error has been made.

144    Against that background, it is then necessary to make some general observations about the Enterprise Agreement, before then turning to focus on the specific clauses of the Enterprise Agreement that the ARTBIU alleged were contravened by Pacific National, contrary to s 50 of the FW Act.

The Enterprise Agreement

145    As I have already said, the Enterprise Agreement is comprised of nine parts: the 'main body of the Agreement' and eight 'Attachments'. The focus of the first two grounds of appeal is on Attachment 1.

146    The only evidence before this Court of the industrial context in which the Enterprise Agreement operates emerges from the statement of agreed facts. In that regard, it was an agreed fact that Pacific National provides long-distance rail transport across Australia for containerised freight and that some employees of Pacific National are employed as train drivers. Neither party referred to any other matters of context outside the terms of the Enterprise Agreement, and there was no evidence of the history of the Enterprise Agreement or any of its clauses that may have been relevant to its construction.

147    The persons bound by the Enterprise Agreement are Pacific National Services, Pacific National (NSW), the ARTBIU and employees employed by Pacific National Services and Pacific National (NSW) 'within its Intermodal division' to perform work within the classifications contained in the Enterprise Agreement. The phrase 'Intermodal division' is not defined in the Enterprise Agreement. However, the various classifications that are provided for in cl 10 indicate that the employees covered by the Enterprise Agreement are train drivers operating at various levels of experience.

148    Clause 7 in the main body of the Enterprise Agreement is entitled 'CONTRACT OF EMPLOYMENT'. For present purposes it is only necessary to reproduce cl 7.1.3, which provides as follows:

7.1.3    When engaged, all employees shall:

7.1.3.1    Attend for work fit, ready and able to perform in their role;

7.1.3.2    Use safe work practices and properly use all appropriate protective clothing and equipment provided by Pacific National;

7.1.3.3    Undertake all work as directed, which can be assigned to a person of that skill and/or competence;

7.1.3.4    Comply with all Pacific National policies and procedures as in force from time to time;

7.1.3.5    Comply with any reasonable request to working shift rosters where required;

7.1.3.6    Pacific National may require an employee to work reasonable overtime at the appropriate penalty rates;

7.1.3.7    Implement and use new technology, systems and / or processes, when trained, which will improve business efficiency and effectiveness.

7.1.3.8    Participate in developing and implementing work methods that are designed to improve the performance of Pacific National; and

7.1.3.9    Participate in training, learning and developmental programs and attend team briefings, which are conducted during working time, to enhance the productivity of the workplace.

149    Clause 12 of the Enterprise Agreement is concerned with the hours of work:

12    HOURS OF WORK

12.1    The ordinary hours of work, for a full-time employee, are one thousand, nine hundred and seventy six hours (1976) per annum. This is equivalent to fifty-two weeks at thirty-eight ordinary hours per week. The annual ordinary hours are made up as follows:

12.1.1    One thousand, nine hundred and seventy six (1976) hours, which includes eighty-three point six (83.6) hours for eleven (11) public holidays and one hundred and ninety (190) hours of annual leave for a shift worker, or

12.1.2    One thousand, nine hundred and seventy-six (1976) hours, which includes seventy-six (76) hours for a minimum of ten (10) public holidays and one hundred and fifty two (152) hours of annual leave for a day worker.

12.2    While public holiday hours are included in the total hours outlined above, where an employee is rostered to work on a public holiday they are required to attend for work and undertake activities as rostered, subject to provisions of the Act.

12.3    In addition to the ordinary hours specific above, employees may be required to work reasonable overtime (with the exception of working rostered days off (RDO's) for payment of overtime penalty rates.

12.4    An employee may decline to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:

12.4.1    Any risk to an Employee's health and safety that may reasonably be expected to arise if the Employee worked the additional hours.

12.4.2    The Employee's personal circumstances (including any family responsibilities).

12.4.3    The operational requirements of PN in relation to which the Employee is required or requested to work the additional hours.

12.4.4    Any notice given by PN of the requirement or request that the Employee work the overtime.

12.4.5    Any notice given by the Employee of their inability to work the overtime.

12.4.6    Whether any additional hours are on a public holiday.

12.4.7    The Employee has worked excessive hours over the preceding four (4) weeks, ending immediately before the Employee is required or requested to work the additional hours; and

12.4.8    Any other relevant matter.

150    It may be seen that the ordinary hours of work that a full-time employee is required to perform as an employee of Pacific National are determined by reference to a fixed number of hours that must be performed over the course of a year. Where an employee is rostered to work on a public holiday, they are required to attend for work and undertake activities as rostered. Further, employees may also be required to work 'reasonable overtime … for payment of overtime penalty rates'. I will shortly explain how overtime is dealt with in the Enterprise Agreement having regard to the particular obligation to perform the ordinary hours of full-time work.

151    It is evident from the terms of the Enterprise Agreement that employees covered by the Enterprise Agreement are required to perform their ordinary hours of work based on a rostering system. The mechanism by which such employees are credited hours is provided for in cll 13 and 14 in the main body of the Enterprise Agreement, which are in the following terms:

13    CREDITING OF HOURS

13.1    Employees will be credited with the hours shown in the Working Roster or actual hours worked (including ordinary hours worked on a public holiday), whichever is the greater.

13.2    The only situations where hours credited in any one week will be less than the hours shown in the working roster are where:

13.2.1    A shift is cancelled with at least three (3) hours' notice and no alternative work is provided.

13.2.2    An employee is absent without leave.

13.2.3    In accordance with the Leave Provisions.

13.2.4    Where an employee agrees to a mutual exchange of rostered shifts in accordance with Attachment 1, Clause 3.7 and 3.8.

13.3    Where an employee is rostered for either a week of annual leave relief or blank line working, the employee will be credited the greater of either the actual hours worked or the master roster average.

13.4    Target hours means 608 hours in a 16 week Duty Cycle or 760 hours in a 20 week Duty Cycle.

13.5    Credited hours' means the hours credited to the Duty Cycle which includes clauses 13.1, 13.2, 13.3 and 29.3.8 or 29.3.9 and 15.5 if applicable.

13.6    Forecast hours means the hours credited to the Duty Cycle and rostered (but not yet worked) hours for the remainder of the Duty Cycle.

13.7    Shortfall to target means the target hours as defined in 13.4 minus the forecast hours (13.6), plus forecast public holiday credits. (shortfall to target= Target Hours- (forecast + forecast public holiday credits))

13.8    Pacific National will provide details to employees on a weekly basis via the posting of the report in the depot office showing for each employee for the 16 or 20 week duty cycle period:

13.8.1    the target hours for the 16 or 20 week cycle;

13.8.2    actual hours credited for any completed week worked for all weeks expired to date in the 16 or 20 week cycle;

13.8.3    the forecast hours to be credited according to the master roster for the remaining weeks in the cycle;

13.8.4    shortfall to target for the remaining weeks in the cycle

13.8.5    number of RDO's provided for the employee for the year to date.

For example, at Week 4 of a cycle, the following would be displayed for an employee:

13.9    Pacific National will provide details on request of the individual shifts the employee has worked, leave taken, and the hours credited on each occasion.

13.10    Pacific National will establish a process for employees to query any discrepancies which must be responded to with information by the company within 5 business days.

13.11    Any shortfall of hours against target hours may be recovered through the rostering of additional shifts in the Working Roster, and/or through working of additional hours consistent with the provisions of the rostering guidelines in Attachment 1.

13.12    Intermodal division shall only roster an employee for extra shifts in accordance with clause 13.11 where there is a shortfall of at least 8 hours, except for training and medical shifts which will be a shortfall of 4 hours.

13.13    Such shifts are to be posted on the Working Roster to provide notice to the affected employee.

13.14    Extra shifts which recover more than the shortfall of hours against the target hours (i.e. the incur overtime) may only be rostered by agreement with the employee concerned, subject to clause 12.3 and 12.4.

13.15    Where an employee has worked additional hours (either linehaul or to complete a shift on a rostered day off) and the amended fatigue score results in the employee not being able to undertake their next shift, then the employee will either be found an alternative shift in accordance with the Cancellation Recovery Shift or if this is not possible, then the hours of the shift unable to be worked will be credited to the employees' hours balance.

14    CYCLE OF HOURS

14.1    The objective of this clause is to ensure that each employee will be rostered to work an average of 38 hours per week. The is the equivalent to 608 hours per 16 week Duty Cycle, or 760 hours per 20 week Duty Cycle which may include periods of annual leave of 38 hours per week and 7.6 hours for each public holiday.

14.2    An annual Duty Cycle pattern of 16/20/16 week cycles will be the basis for managing the spread of ordinary hours across the working hours' cycle. The three Duty Cycles are intended to span a calendar year, with the first Duty Cycle starting as close as practicable to the start of the calendar year. Duty Cycle hours will be reset to zero at the conclusion of each Duty Cycle.

14.3    Overtime will be paid at the end of each four (4) week period for those hours worked above target hours.

14.4    Public holidays shall be credited in accordance with clause 29.

14.5    Upon approval of this [Enterprise Agreement] by the Fair Work Commission, the current Duty Cycle (as set out in the applicable 2013 Agreement) will continue unchanged.

14.6    The Master Roster will indicate any periods of time that may be converted to an 'Available Period' at the posting of the Working Roster, provided that the period of time allows for the appropriate rest periods in accordance with clause 5 of Attachment 1 of this [Enterprise Agreement].

14.7    The Master Roster may include designated 'Available Periods' for the purpose of providing additional work if an employee is more than 8 hours in arrears of their target cycle hours.

14.8    Where an employee does not want to work more than 608 credited hours in a 16 week cycle or 760 hours in a 20 week cycle, the employee can elect no later than 2 weeks prior to the start of the duty cycle to be booked off upon reaching 608 or 760 hours (depending on duty cycle duration). Note that the employee will be booked off the end of their rostered shift on which they reach 608 or 760 hours and not mid-shift if this were to occur. Any employee who does not make an election will be deemed to be willing to work above 608 or 760 (depending on duty cycle duration) hours (all hours for which will be paid at overtime rates). An employee who has made an election prior to the start of the cycle can cancel that election at any time during the duty week cycle, however an employee who has not made an election cannot make one after the end of the notification period. Nothing in this clause diminishes the requirement of the employee to work reasonable overtime as per clause 12.3 of this [Enterprise Agreement] prior to the employee booking off after reaching 608 or 760 hours for the period.

152    I will return to discuss the meaning of the terms 'Working Roster' and 'Master Roster' later in these reasons.

153    For present purposes, the relevant effect of cll 12 to 14 may be summarised in the following way:

(1)    Full-time train drivers who are covered by the Enterprise Agreement are required to work a total of 1976 hours per year, which is the equivalent of working a 38-hour week for each of the 52 weeks of the year.

(2)    The spread of ordinary hours across the working hours cycle is managed based on a 'Duty Cycle', which comprises a pattern of three periods of work over the course of a year, namely, periods of 16 weeks, 20 weeks and then 16 weeks again. For a train driver to work an average of 38 hours per week, and to thereby work a total of 1976 hours per year, there is a target of 608 hours to be worked in a 16-week Duty Cycle and a target of 760 hours to be worked in a 20-week Duty Cycle.

(3)    Except in those specific circumstances referred to in cll 13.2 and 13.3, train drivers will be credited with the hours shown in the Working Roster or the actual hours they have worked, whichever is the greater.

(4)    Each week, Pacific National will provide information to train drivers to ensure that they comply with their obligation to work at least 1976 hours per year. That information includes the target hours for the relevant Duty Cycle, the actual hours credited to date, the hours of work forecasted in the Master Roster to be credited for the rest of the Duty Cycle, and the shortfall to the target hours for the remaining weeks of the Duty Cycle. An example of the information that must be provided appears in the table between cll 13.8 and 13.9.

(5)    Any shortfall of hours against target hours may be recovered through rostering of additional shifts and/or by working additional hours 'consistent with the provisions of the rostering guidelines in Attachment 1'.

(6)    Overtime is paid not by reference to a particular rostered shift but, at the end of each four-week period for those hours worked above target hours.

154    Clause 16 also deals with overtime. In summary, cl 16 provides that where an employee's hours that have been credited to their Duty Cycle, plus the hours that are forecast for the remainder of the Duty Cycle, exceeds 608 hours (for a 16-week Duty Cycle) or 760 hours (for a 20-week Duty Cycle), the excess hours are paid as overtime at the end of each four-week period. Further, the overtime hours worked are not counted towards the ordinary hours worked in a Duty Cycle.

155    Given the issues raised by the grounds of appeal, cl 18 of the Enterprise Agreement is of some significance. Clause 18 provides as follows:

18    GENERAL ROSTERING PROVISIONS

18.1    Pacific National will develop and modify rosters consistent with operational requirements.

18.2    Rosters may be developed to include Forecast Working, Blank Line Working or both.

18.3    In developing Rosters, Pacific National must take into account the following:

18.3.1    Family, social and work commitments.

18.3.2    Occupational Health and Safety and specifically Fatigue management principles.

18.3.3    Maintenance of qualifications.

18.3.4    Quality of work.

18.3.5    Relevant conditions of employment.

18.3.6    Duty of care obligations.

18.3.7    Optimal staff productivity.

18.3.8    Fair working for the employees; and

18.3.9    Specific roster arrangements are detailed in Attachment 1 to this [Enterprise Agreement].

156    The word 'Rosters' is not defined in the Enterprise Agreement. However, and as I have already noted, the Enterprise Agreement contains definitions of 'Working Roster' and 'Master Roster'.

157    Clause 18.3 requires that '[i]n developing Rosters', Pacific National is required to take into account the various matters set out in cll 18.3.1 to 18.3.9. One of those matters is of some significance in the context of the grounds of appeal. That is the matter that is the subject of cl 18.3.9, namely, the '[s]pecific roster arrangements … detailed in Attachment 1' of the Enterprise Agreement.

158    Having identified some of the more important clauses that appear in the main body of the Enterprise Agreement, it is now necessary to turn to Attachment 1 of that agreement. This is because the ARTBIU's case that Pacific National contravened a 'term' of the Enterprise Agreement was based on a contention that the relevant terms alleged to have been contravened were clauses that appeared in Attachment 1.

Attachment 1 of the Enterprise Agreement

159    As the heading of Attachment 1, 'ROSTERING GUIDELINES', suggests, it contains several detailed clauses that are concerned with rostering.

160    Grounds 1 and 2 focus on the two clauses in Attachment 1, which the ARTBIU alleged were contravened by Pacific National. The first of those clauses is cl 4, which is in the following terms:

4    Shift Lengths

4.1    Maximum shift lengths

4.1.1    The maximum rostered Shift Length shall be twelve (12) hours, subject to the limits prescribed in the following table:

4.1.2    For twelve (12) hour shifts, crews may be rostered for a maximum of 12 hours from sign on to sign off. For all rostered 12 hour shifts, a process of consultation will occur in respect of but not limited to the following:

4.1.2.1    the corridor concerned.

4.1.2.2    the robustness of the timetabled shift; and

4.1.2.3    the availability of suitable relief

4.1.3    The existing twelve (12) hour shifts arrangements in place on corridors prior to the lodgement of this [Enterprise Agreement] will continue to operate.

4.1.4    The rostering and management of 12 hour shifts is to be guided by the following:

4.1.4.1    No more than four consecutive 12 hour shifts in any one week.

4.1.4.2    No more than six (6) twelve (12) hour shifts in any 14 day period, with a minimum of four rostered days off will apply. Where locations, other than those within NSW, have rosters that at the time of certification contain in excess of 6 X 12 hour shifts, these rosters will remain in place subject to future roster development.

4.1.4.3    A 12 hours shift is defined as any shift in excess of eleven (11) hours.

4.1.4.4    During the roster development process, where shifts in excess of eleven (11) hours are rostered the Master Roster will contain either a relief, local, available or other operational provision, as necessary, to provide relief for crews who may exceed the twelve (12) hour shift limit.

4.1.4.5    Crew will not be required to undertake any work, including driving a motor car, where the traveling time and the original working time exceeds twelve (12) hours or nine (9) hours for a driver only shift.

4.2    Minimum shifts

4.2.1    Subject to sub-clause 4.2.3 below, for Blank Line Working, the actual working time credited to the Duty Cycle for shifts worked will be the greater of the Hours Worked or six (6) hours.

4.2.2    Shifts of a minimum four (4) hours may be used for:

4.2.2.1    Travel shifts.

4.2.2.2    Undertime recovery.

4.2.2.3    An extra overtime shift.

4.2.2.4    Training (where training shifts are proposed, as far as practicable, the content should provide a training shift of eight (8) hours); or

4.2.2.5    Medical examination/Trauma Counselling.

4.2.3    Where shifts of these types are used, the credit of hours to the Duty Cycle will be the greater of the Hours Worked or four (4) hours.

4.2.4    Fatigue management guidelines will be used to manage shift configurations in rosters.

4.3    Maximum hours on Duty in Emergency Situations

4.3.1    Employees who are unable to complete their rostered shift because of an emergency must be relieved from duty and signed off after a maximum period of sixteen (16) hours. In these, emergency means a major equipment failure or operational emergency or other emergency due to fire, flood, storm, earthquake, explosion, accident, derailment, epidemic or warlike action. The working of extended hours in this circumstance is subject to the crews' indications of their fitness to continue.

161    The ARTBIU's specific allegation in relation to contraventions 1, 3, 4, 6 to 9 and 11 was that Pacific National contravened 'Attachment 1 Clause 4.1.1 … by failing to sign off [certain named employees] off duty within the maximum rostered shift length'. Having found that the ARTBIU had failed to establish contraventions 1, 9 and 11, the Deputy President made declarations in relation to the balance of the contraventions that Pacific National 'contravened the [Enterprise Agreement] in that it did not relieve from duty and sign off [relevant employees on particular numbered train services] within the maximum shift length permitted by Attachment 1 of the [Enterprise Agreement]'.

162    The ARTBIU's case was, and is on the appeal, that the various shift lengths that appear in the second column of the table in cl 4.1.1 of Attachment 1, which is headed 'Maximum Shift Lengths' imposes upper limits on the actual hours that may be worked by those employees who are correspondingly identified in the first column headed 'Crew Arrangement'. The ARTBIU argue that there are several textual and contextual factors that indicate that the 'Maximum Shift Length[s]' referred to in the table in cl 4.1.1 are hard upper limits on the hours that may be worked by an employee covered by the Enterprise Agreement. One of those broader contextual factors is the nature of the work undertaken by train drivers and the concomitant need to ensure personal and public safety by placing limits on the length of the shifts that may be worked.

163    On the other hand, Pacific National argues that cl 4.1.1 of Attachment 1 does not impose 'hard caps' on the lengths of worked shifts. According to Pacific National, what cl 4.1.1 does is identify practical limits that must be taken into account under cl 18.3.9 in the main body of the Enterprise Agreement in the development of rosters for relevant crew arrangements, and in determining how long the rostered shift will be for a given service.

164    The second clause on which the ARTBIU relied is cl 14 of Attachment 1, which is in the following terms:

14    3-Up Working

14.1    For the following sectors, the rostered Shift Length is 15 hours (sign on to sign off) for slow services: Slow services are defined as services for which the average running time is over 12 hours:

Kalgoorlie - Cook

Cook - Port Augusta

14.2    Three locomotive drivers will be rostered for the entire shift. A travel van will be attached to each train to enable one driver to travel passenger, as required. The shift will be credited to the Duty Cycle at ordinary hours.

165    For the purposes of contraventions 2, 5 and 10, the ARTBIU alleged that Pacific National contravened cl 14.1 (which was erroneously referred to in the details of the alleged contravention annexed to the ARTBIU's application in the Employment Court as 'Clause 14.1.1') by 'failing to sign off [certain named employees] within the maximum rostered shift length'. In respect of each of those contraventions, the Deputy President also made declarations that Pacific National 'contravened the [Enterprise Agreement] in that it did not relieve from duty and sign off [relevant employees] within the maximum shift length permitted by Attachment 1 of the [Enterprise Agreement]'.

166    Relying on a similar argument to the one on which it relied in the context of cl 4.1.1, the ARTBIU contended, and contends on the appeal, that cl 14.1 of Attachment 1 also fixes the maximum period of actual work time that an employee can perform. The ARTBIU argues that cl 14.1 specifically applies to '3-Up Working', where there are three train drivers working on the same service which is a form of shift that is not dealt with by cl 4.1.1. The ARTBIU says that although cl 14.1 refers to a 'rostered Shift Length' of 15 hours, the context in which cl 14.1 appears in Attachment 1 and its use of the words 'sign on to sign off' that appear in parentheses, mean that, on its proper construction, cl 14.1 fixes an upper limit on the actual time that may be worked by an employee when '3-Up Working'.

167    Pacific National argues that cl 14.1 does not impose a cap on the length of an actual shift that may be worked. According to Pacific National, there is nothing in the words used in cl 14.1 to suggest that there is a 15-hour cap on the length of an actual shift for '3-Up Working', and that the words 'sign on to sign off' merely clarify that a rostered shift encompasses that time. Pacific National also argues that the words 'sign on to sign off' do not provide a sound basis for concluding that cl 14.1, on its proper construction, imposes an obligation on Pacific National to relieve and sign off an employee from duty before 15 hours has expired.

Consideration of grounds 1 and 2

168    I have already observed that to establish that a person contravened s 50 of the FW Act, there must be proof that there has been a contravention of a 'term of an enterprise agreement' being a term that imposes an obligation that is binding on a party under that agreement. As serious consequences flow from a finding that a person has contravened s 50, where it is alleged that there has been such a contravention, both the terms of the relevant enterprise agreement that is alleged to have been contravened and the conduct that is alleged to constitute the contravention of that term must be clearly identified. This is necessary not only to ensure that a respondent is properly appraised of the case they are required to meet but also so that the Court knows, with precision, what it is required to determine.

169    The specific claim the ARTBIU made in the Employment Court was that the contravening conduct in which Pacific National had engaged was 'failing to sign off their employees off duty within the maximum rostered shift length'. However, the declarations made by the Deputy President were expressed in a slightly different way. Those declarations identified that Pacific National's contravening conduct was that it 'did not relieve from duty and sign off employees … within the maximum shift length permitted by Attachment 1 of the [Enterprise Agreement]'.

170    There is no issue that Pacific National did engage in the conduct that was the subject of the ARTBIU's claims. Further, although the declarations made by the Deputy President did not precisely reflect those claims, there is also no issue that Pacific National also engaged in the conduct that was the subject of those declarations. The question raised by grounds 1 and 2 is whether Pacific National's conduct amounted to a contravention of cll 4.1.1 or 14.1, respectively. The answer to that question depends on the proper construction of cll 4.1.1 and 14.1. More specifically, the answer depends on whether those clauses, as 'terms' of the Enterprise Agreement (as explained in Lattouf), impose on Pacific National the specific obligations that were alleged by the ARTBIU and that were found by the Employment Court to have been imposed.

171    The parties conducted the appeal on the basis that the issue of construction that was determinative of the question of whether Pacific National contravened cll 4.1.1 and 14.1, was whether those clauses impose 'actual limits' or 'hard caps' on the shifts that employees covered by the Enterprise Agreement can actually work. However, the difficulty is that this approach largely ignores the specifics of the claim the ARTBIU made in the Employment Court as well as the terms of the declarations that were ultimately made by the Deputy President. In particular, it does not grapple with the critical issue of whether, on the proper construction of the text used in cll 4.1.1 and 14.1, those clauses impose an obligation on Pacific National to relieve from duty and sign off the employees within maximum shift limits, as was alleged and found.

172    It may be accepted that narrow or pedantic approaches should not be taken to the interpretation of enterprise agreements, recognising that the framers of such agreements are:

likely of a practical bent of mind [and] may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.

See Kucks v CSR Limited (1996) 66 IR 182 at 184.

173    However, sight must not be lost of the fact that the construction of enterprise agreements is text-based: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J), [65] to [67] and [77] (Kirby J). As the authorities that explain the approach to be taken to construing enterprise agreements make clear, the starting point is the ordinary meaning of the words that are actually used in such agreements. It is not open to merely conjure up an obligation to be imposed on a party to an enterprise agreement without any textual foothold.

174    The text used in cll 4.1.1 and 14.1 does not expressly impose any obligation on Pacific National to relieve its employees from duty and to sign them off within any shift length limits. However, there is also no textual foothold for reaching a conclusion that those clauses, properly construed, nonetheless do impose such an obligation on Pacific National. While the ARTBIU contends that cll 4.1.1 and 14.1 impose limits on the actual hours that may be worked by employees covered by the Enterprise Agreement, it has not explained how the words used in those clauses could be read as imposing a positive obligation on Pacific National to relieve its employees from duty and to sign them off within shift length limits provided for in those clauses.

175    In my view, there is nothing in the text used in either cll 4.1.1 or 14.1 that supports the ARTBIU's claims, or the Deputy President's conclusions, that those clauses impose an obligation on Pacific National to relieve its employees from duty and to sign them off within any shift length limits. What this means is that the claims made by the ARTBIU in the Employment Court that Pacific National contravened s 50 of the FW Act by contravening cll 4.1.1 and 14.1, respectively, by 'failing to sign off their employees off duty within the maximum rostered shift length' were untenable. It was also not open to the Deputy President to find as he did, and as was reflected in the declarations that were made, that Pacific National had:

contravened the [Enterprise Agreement] in that it did not relieve from duty and sign off employees … within the maximum shift length permitted by Attachment 1 of the [Enterprise Agreement].

176    The unavoidable conclusion is that grounds 1 and 2 must both be allowed.

177    However, given the way in which these grounds were argued, I will deal with the issue of construction on which the parties focussed, namely, whether cll 4.1.1 and 14.1 impose 'actual limits' or 'hard caps' on the shifts that employees covered by the Enterprise Agreement can actually work.

178    It is convenient to begin consideration of that constructional issue by noting that although Attachment 1, in which cll 4.1.1 and 14.1 are found, is referred to in several clauses that appear in the main body of the Enterprise Agreement, no express statement of its purpose is to be found anywhere in the Enterprise Agreement.

179    In some instances, specific clauses in Attachment 1 are referred to in clauses that appear in the main body of the Enterprise Agreement as imposing conditions on or providing parameters within which those clauses are to operate. For example, cl 13.2 of the main body provides:

13.2    The only situations where hours credited in any one week will be less than the hours shown in the working roster are where:

13.2.1    A shift is cancelled with at least three (3) hours' notice and no alternative work is provided.

13.2.2    An employee is absent without leave.

13.2.3    In accordance with the Leave Provisions.

13.2.4    Where an employee agrees to a mutual exchange of rostered shifts in accordance with Attachment 1, Clause 3.7 and 3.8.

(emphasis added)

180    A further example is cl 13.11, which provides:

Any shortfall of hours against target hours may be recovered through the rostering of additional shifts in the Working Roster, and/or through working of additional hours consistent with the provisions of the rostering guidelines in Attachment 1.

(emphasis added)

181    In other cases, the references to Attachment 1 suggests that it imposes obligations and creates rights independently of the operation of the main body of the Enterprise Agreement. For example, cl 46.5.6 provides:

Where Train Crew employees have been temporarily transferred and would be entitled to meal allowances under this clause and the barracks meal allowance set out in Attachment 1, such employees will only be entitled to the barracks meal allowance set out in Attachment 1.

(emphasis added)

182    In that regard, cl 10.3 of Attachment 1 provides:

Where Pacific National does not provide meals, employees shall be paid a meal allowance of thirty one dollars and thirty six cents for each completed 8 hour period, or part thereof, calculated from the sign-on at the employee's home base to the sign-off at the employee's home base. This amount shall be adjusted by a formula that applies the Consumer Price Index (CPI) (weighted average of eight (8) capital cities) for the Meals Out and Take Away Food component. This adjustment shall be made annually in the first full pay period following the release of CPI data for the September quarter each year in respect of changes in the index over the previous year.

183    However, Pacific National contends that the effect of cl 18.3.9 of the main body of the Enterprise Agreement is that Attachment 1 has only a limited operation. It submits that the various clauses in Attachment 1 are merely one set of the various factors that Pacific National must take into account in developing rosters. Clause 18.3.9 of the main body of the Enterprise Agreement provides that '[i]n developing Rosters, Pacific National must take into account', amongst other things, the '[s]pecific roster arrangements [that] are detailed in Attachment 1 to [the Enterprise Agreement]'. Accordingly, it may be accepted that this is at least one of the purposes of Attachment 1 and is consistent with its title: 'ROSTERING GUIDELINES'.

184    However, the ARTBIU contends that the clauses in Attachment 1 impose obligations on the parties covered by the Enterprise Agreement, independently and according to their terms, quite apart from constituting factors that Pacific National must take into account in developing rosters in accordance with cl 18.3.9.

185    Some of the clauses in Attachment 1 do appear to expressly impose obligations on the parties covered by the Enterprise Agreement. I have already referred to cl 10.3 of Attachment 1, which appears to oblige Pacific National to pay a meal allowance. To further illustrate this point, cl 2.8 in Attachment 1 provides that, in managing rosters, Pacific National 'will roster one weekend off in every four week period'. Similarly, cl 3.3 of Attachment 1 provides that employees who have specific reasons to ensure shifts are not altered should advise their immediate supervisor of their requirements at least two weeks before the posting of a roster.

186    That at least some of the clauses in Attachment 1 were objectively intended to independently impose binding obligations on a party under the Enterprise Agreement is also supported by the terms of cl 18.3 itself. In that regard, the various factors that Pacific National is required by cl 18.3 to take into account in developing rosters operate independently of, and separately impose obligations on the parties covered by, the Enterprise Agreement. For example, occupational health and safety requirements (cl 18.3.2) and duty of care obligations (cl 18.3.6) are obligations that are imposed on the parties to the Enterprise Agreement independently of any requirement that those matters be taken into account by Pacific National in the development of rosters.

187    However, there are other clauses that appear in Attachment 1 with text that is declaratory, and which do not directly impose obligations on any of the parties to the Enterprise Agreement. For example, cl 2.10 of Attachment 1 provides that, where sign off from a previous shift is between midnight Friday and 3.00 am on Saturday, a weekend will comprise a minimum of 60 hours duration from sign on to sign off. By way of a further example, cl 10.1 of Attachment 1 provides as follows:

Rosters for train crew may include tasks or jobs that involve rest periods and/or shift breaks away from the initial sign on location. To avoid doubt, this provision provides for the next turn of duty to be one that provides for the employee to return to their initial home base or sign-on point.

188    Against that background it is then necessary to consider the text used in cll 4.1.1 and 14.1 of Attachment 1, commencing with cl 4.1.1.

189    Clause 4 of Attachment 1 is headed 'Shift Lengths', and cl 4.1 'Maximum shift lengths'. The chapeau to cl 4.1.1 then provides that:

The maximum rostered Shift Length shall be twelve (12) hours, subject to the limits prescribed in the following table:

190    It may be seen, therefore, that the text used in this part of cl 4.1.1 is declaratory in nature and does not impose any obligation on the parties to the Enterprise Agreement. Instead, it merely asserts what the maximum rostered shift length shall be, and that this maximum is subject to the limits prescribed in the table that appears in cl 4.1.1. As I will shortly explain, it is only by reading cl 4.1.1 with cl 18.3.9 of the main body of the Enterprise Agreement that the way in which cl 4.1.1 was objectively intended to operate becomes clear.

191    Clause 4.1.1 refers to the 'maximum rostered Shift Length' (emphasis added). Although the use of capitalisation of the phrase 'Shift Length' in cl 4.1.1 might suggest otherwise, that phrase is not defined anywhere in the Enterprise Agreement. However, the Enterprise Agreement does have something to say about rosters and shift lengths.

192    The term 'Working Roster' is defined in cl 4 of the main body of the Enterprise Agreement as:

Roster(s) developed from Master Rosters that provide more detail of attendance requirements. Working Rosters allocate employees to work lines and adjust the rostered work to accommodate work variations, planned leave and/or any other issues known at the time of posting.

(emphasis added)

193    Further, the term 'Master Roster' is also defined in cl 4 of the Enterprise Agreement in the following way:

Roster(s) that are permanently displayed at a location that show rostered days off and any known tasks or work.

194    Both terms 'Master Roster' and 'Working Roster' are used in the main body of the Enterprise Agreement, including in cll 12 to 14, which I have reproduced earlier in these reasons. As can be seen, cll 12 to 14 are concerned with the ordinary hours of work for full-time employees, how employees are credited with hours worked and the use of duty cycles of work to ensure that each full-time employee will be rostered to work an average of 38 hours per week. However, Attachment 1 also has something to say about 'Master Rosters' and 'Working Rosters' in cl 1 titled 'Rosters':

Master Rosters

1.1.    A Master Roster shall be exhibited primarily for the purpose of indicating rostered days off (RDOs) and any known or Forecast Work.

1.2.    The Master Roster may include Forecast Working and Blank Line Working or combinations of both.

1.3.    The master roster will average a maximum of 38 hours per week for the off peak roster and 40 hours per week for the peak roster unless otherwise agreed with the employees. The parties acknowledge that these additional hours during the peak period are reasonable.

1.3.1    Off peak period is defined as (as close as practicable to) January 1 - September 30

1.3.2    Peak period is defined as (as close as practicable to) October 1 - December 31

1.4.    Pacific National will maximise the amount of Forecast Working, where business and operation requirements make it practical to do so.

1.5.    Shifts placed in the Working Roster will not be altered from the Master Roster for the sole purpose of artificially reducing the employees cycle hours.

1.6.    Where a change in the Master Roster is proposed, consultation as outlined in Clause 42 of this Agreement will commence at least twenty eight (28) days prior to the intended implementation date of the new Master Roster. Following consultation, the final Master Roster is to be posted at least 14 days in advance of its introduction.

1.7.    The number of Pacific National initiated Master Roster changes shall not exceed four (4) in any twelve (12) month period, unless by agreement of a majority of employees at an affected depot or worksite.

1.8.    Where a variation to a Master Roster is proposed which does not impact on an RDO, but is only:

1.8.1    A variation to the existing rostered working; or

1.8.2    To place additional RDOs;

then such change will not constitute one of the 4 Master Roster changes.

Working Rosters

1.9.    Where variations to any forecast work shown on a Master Roster not impacting on RDOs, are required, a Working Roster is developed.

1.10.    Working Rosters must be posted weekly, at least 9 days in advance of the Sunday on which the roster is to commence.

1.11.    Working Rosters contain all the work allocated to a depot in the Master Roster. It allocated drivers to work lines and adjusts the work to accommodate additional trains, cancelled trains, training, planned leave and/or any other issue which are known at the time of the posting of the Working Roster.

195    I pause here to note that the phrase 'Forecast Working' is defined in cl 4 in the main body of the Enterprise Agreement as '[t]he predominant form of working where the shifts (sign on times and Shift Lengths) are forecast in advance in the Master Roster'. The phrase 'Blank Line Working' is also defined in cl 4 as:

[a] roster or a line or lines in a roster where no known work is indicated (or forecast). Such rostering may apply to all Employees other than Maintenance Employees.

196    As can be seen from the definitions of 'Working Roster' and 'Master Roster', and from the references to those rosters in cl 1 of Attachment 1, the word 'roster' is used in a way that is broadly consistent with its ordinary meaning. That ordinary meaning is '[a] list or plan showing the rotation of duties and leave for individuals or groups in any organization, [originally] a military force' (New Shorter Oxford Dictionary) and 'a list of persons or groups with their turns or periods of duty' (Macquarie Dictionary): see also Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 1294 at [16] to [18]. Further, as Rangiah J said in Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2018] FCA 125 at [40]:

an important purpose of a roster is to inform employees when they will be working and for how long they will be working during a roster period. Rosters can usually be expected to indicate which days the employee will work in a roster period and their starting and finishing times; and, thus, the number of hours they will work.

(citations omitted)

197    When read with cl 7.1.3 of the main body of the Enterprise Agreement, which imposes an obligation on employees to attend for work fit, ready and able to perform in their role and to undertake all work as directed, what the definitions of 'Master Roster' and 'Working Roster', and cl 1 of Attachment 1 make clear is that a purpose of the rosters that Pacific National develops is to provide specific directions to, and to thereby impose obligations on, employees covered by the Enterprise Agreement to attend at and to carry out work.

198    Clause 18.3.9 provides that, in developing those rosters, Pacific National must take into account '[s]pecific roster arrangements' that are detailed in Attachment 1. Given that cl 18.3.9 and Attachment 1 form part of an enterprise agreement that was made under the FW Act, and having regard to the ordinary meaning of the word 'arrangement', which includes 'an agreement or settlement' (Oxford English Dictionary), it is clear that not only does Attachment 1 contain various matters that Pacific National must take into account in developing rosters, but also that those matters were agreed to when the Enterprise Agreement was made.

199    In that context cl 4.1.1 of Attachment 1 may be understood as being one of the '[s]pecific roster arrangements' to which cl 18.3.9 refers. The purpose of cl 4.1.1 is to declare the limits on the periods of time during which employees who are covered by the Enterprise Agreement may be directed to attend at and carry out work by rosters developed by Pacific National, which limits were agreed to when the Enterprise Agreement was made. Therefore, where a '[s]pecific roster arrangemen[t]' provided for in cl 4.1.1 is that the maximum rostered shift length is 12 hours, the requirement that Pacific National take that arrangement 'into account' must be understood as a requirement to ensure that the rosters that it develops do not impose obligations on relevant employees to work shifts for longer than the agreed 12 hours.

200    The agreed maximum 12-hour shift length provided for in cl 4.1.1 is also 'subject to the limits prescribed in [the table in cl 4.1.1]'. Accordingly, when developing rosters that oblige employees to attend for work, Pacific National is also required to take into account a '[s]pecific roster arrangemen[t]' for each 'Crew Arrangement' that is referred to in the first column of the table, with the corresponding agreed to maximum shift length for those crews being provided for in the second column of the table. Those maximum shift lengths may be seen to reflect the number and experience of the crew working a particular shift, with longer shifts being allowed for more experienced and larger crews. The requirement to take those 'roster arrangements' into account must also be understood as imposing an obligation on Pacific National to ensure that, when rostering a particular 'Crew Arrangement', the rosters do not impose obligations on employees to work shifts that exceed the corresponding limits that appear in the second column of the table.

201    The ARTBIU's central contention in relation to cl 4.1.1 of Attachment 1 is that the 'Maximum Shift Lengths' referred to in the second column of the table that appears in that clause are limits on the actual hours that may be worked by employees covered by the Enterprise Agreement. However, and as I have explained, what cl 4.1.1 does, in combination with cl 18.3.9 of the main body of the Enterprise Agreement, is give effect to agreed limits on the extent to which Pacific National can use rosters to impose specific obligations on its employees to attend for and undertake work. Nevertheless, it does not follow that cl 4.1.1 of Attachment 1 must somehow be construed as a term of the Enterprise Agreement that imposes an obligation on Pacific National to sign off its employees and relieve them from duty within the shift limits to which it refers.

202    This conclusion is unaffected by the notes that appear in the second column of the table in cl 4.1.1. While the focus of the table in cl 4.1.1 is on fixing maximum shift lengths, it is obvious that Pacific National is not required to roster shifts for those maximum lengths. Accordingly, the Enterprise Agreement understandably contemplates that where, in relation to certain 'Two Person Operation[s]', rostered shifts approaching the maximum shift lengths are proposed, a form of consultation must be undertaken when developing rosters. This reflects the fact that rosters impose obligations on employees to attend at, and to perform, work. Where rosters approaching maximum shift lengths are proposed, train drivers providing Pacific National's 'long-distance rail transport services' will no doubt be interested in being consulted because of the obvious potential for circumstances to arise that require them to work beyond maximum shift lengths. However, it says nothing about whether cl 4.1.1 also imposes on Pacific National the obligation on which the ARTBIU relied.

203    The ARTBIU submitted that the notes that appear in each of the final three entries in the second column of the table in cl 4.1.1, which refer to 'actual shifts', strongly suggest that the maximum shift lengths are the actual limits of the hours that can be worked by employees. Those notes must be read with cl 6.6 of Attachment 1, which is in the following terms:

6.6    Shift Lengths will vary according to operational needs as follows:

6.6.1    employees may be required to work hours additional to those in the Master/Working Roster (up to the maximum Shift Length) to complete the assigned task(s).

6.6.2    employees may be required to work up to the rostered sign off time when the task(s) are completed short of the estimated time.

6.6.3    employees may be asked to work up to the shift limit by agreement once the assigned task(s) are completed.

204    It may be seen that the effect of cl 6.6 is that employees may be required to work additional hours up to a maximum shift length to complete assigned tasks or upon request once those assigned tasks are completed. In circumstances in which Attachment 1 also provides for minimum intervals between shifts and mandatory rest periods, and where driver fatigue is likely to be a major consideration, it is plain that the purpose of the notes in the table in cl 4.1.1 is to ensure that, in setting shifts, the possibility that employees may be required to work beyond the end of those shifts is taken into account by Pacific National in the development of rosters. However, it does not somehow follow that cl 4.1.1 also imposes a positive obligation on Pacific National to sign off their employees and relieve them from duty within the maximum limits provided for in that clause.

205    Four further observations can be made about the ARTBIU's claim that cl 4.1.1 of Attachment 1 imposed an obligation on Pacific National to sign off their employees and relieve them from duty within certain maximum shift limits.

206    Firstly, it may be noted that cl 4.1.2 provides that for maximum shift lengths of 12 hours, a process of consultation is required to occur in respect of the corridor concerned (which presumably is a reference to a rail corridor), the robustness of the timetabled shift and the availability of suitable relief. This imposition of an obligation on all relevant parties to engage in a process of consultation about a shift of 12 hours would be entirely unnecessary if cl 4.1.1 imposed a positive obligation on Pacific National with respect to employees rostered for 12-hour shifts to sign them off and relieve them from duty within that time. This is a strong indicator that the ARTBIU's claim was required to be rejected.

207    Secondly, cl 4.1.4.4 provides that during the roster development process, where shifts in excess of 11 hours are rostered, the Master Roster will contain a provision, as necessary, for 'relief for crews who may exceed the twelve (12) hour shift limit' (emphasis added). Not only does that clause expressly contemplate crews exceeding the maximum 12-hour shift provided for in cl 4.1.1, if, as the ARTBIU claimed, cl 4.1.1 does impose an obligation on Pacific National to sign employees off and relieve them from duty within a 12-hour maximum shift, there would be no occasion to make any provision for relief in anticipation that the maximum shift length may be exceeded. If cl 4.1.1 did impose that obligation, relief would never be required because a 12-hour shift could never be exceeded. This is further strong indication, derived from the terms of cl 4 itself, that no such obligation is imposed on Pacific National.

208    Thirdly, while I will come to deal in more detail with cl 4.3 later in these reasons, it is important at this point to note that, in stark comparison to cl 4.1.1, it expressly provides that, in the circumstances to which it refers, employees 'must be relieved from duty and signed off after a maximum period of sixteen (16) hours'. The fact that cl 4.1.1, which also appears in cl 4, does not expressly impose a similarly expressed obligation on Pacific National is a further strong indicator that such an obligation was not objectively intended to be imposed under cl 4.1.1 when the Enterprise Agreement was made.

209    Fourthly, because of the particular way in which the ARTBIU claimed in the Employment Court that Pacific National had contravened s 50 of the FW Act, any question about whether Pacific National contravened cl 4.1.1, or any other term of the Enterprise Agreement, by requiring its employees who were the subject of contraventions 3, 4, 6, 7, 8 and 10 to work beyond maximum shift lengths, and whether it was nevertheless permitted to do so in circumstances in which those employees were paid overtime, does not arise for determination. This is because the ARTBIU did not make that claim in the Employment Court.

210    In the context of ground 2, the text used in cl 14.1 of Attachment 1 provides even less support for the ARTBIU's claim that the Enterprise Agreement was contravened by Pacific National's failure to sign off their employees and relieve them from duty within the maximum limits provided for in that clause. Like cl 4.1.1, it does not expressly impose any such obligation on Pacific National. Further, while it might be accepted that cl 14.1 is a '[s]pecific roster arrangemen[t]' that for sectors 'Kalgoorlie - Cook' and 'Cook - Port Augusta' the maximum rostered shift length for '3-Up Working' is '15 hours (sign on to sign off)', and that such arrangement must, by force of cl 18.3.9 in the main body of the Enterprise Agreement, be taken into account in developing rosters, that provides no textual footing for a conclusion that it also imposes on Pacific National the obligation that was the basis of the ARTBIU's claim in the Employment Court.

211    Once again, whether Pacific National contravened cl 14.1 of Attachment 1, or any other term of the Enterprise Agreement, by requiring the employees on '3-Up Working' (that were the subject of contraventions 2 and 5) to work beyond a 15-hour maximum shift length, and whether it was nevertheless permitted to do so in circumstances in which those employees were paid overtime, does not arise for determination because that claim was not before the Employment Court.

212    For these reasons, grounds 1 and 2 must be allowed.

213    The parties conducted the appeal on the basis that if grounds 1 and 2 were allowed then the appeal must be allowed with the result that the Court did not need to consider the rest of the grounds relied on by Pacific National. As will be seen, it was appropriate for the parties to proceed on that basis.

Ground 3

214    Having regard to the way in which I have decided to resolve grounds 1 and 2, ground 3 does not arise for consideration. This is because ground 3 proceeds on the assumption that the Deputy President was correct to uphold the claim the ARTBIU made in the Employment Court that Pacific National acted contrary to cll 4.1.1 and 14.1 of Attachment 1. However, as ground 3 was the subject of argument, I will briefly say something about its merits.

215    As I have already alluded to, ground 3 relies on Attachment 6 to the Enterprise Agreement. Attachment 6, which is entitled 'ATTACHMENT 6 - LOCAL AGREEMENTS', consists almost entirely of a table that is introduced in the following way:

Due to the unique circumstances at certain Intermodal depots, certain practices are undertaken to specifically deal with the individual needs of specific depots. Consequently, the following provisions, described below, shall apply only to the depots listed below notwithstanding anything else contained in this [Enterprise Agreement].

The specific details as outlined below will prevail over the main body of the [Enterprise Agreement] and the Rostering provisions in Attachment 1 to the extent that there is any inconsistency and continued to apply.

216    In that context, Pacific National relies on the first entry, being Item 1, in the table that immediately follows and which is in the following terms:

217    Pacific National argues that Item 1 in the table applies to all of the contraventions. This is because, in each case on the agreed facts, the relevant 'depot' was Port Augusta, Kalgoorlie and Perth. Pacific National contends that because Item 1 in the table contemplates employees working in excess of 12 hours on rostered 12-hour shifts and more than 15 hours on 15-hour shifts, and that where this occurs the excess working time will be treated as overtime and paid at overtime rates, it is inconsistent with the shift limits provided for in cll 4.1.1 and 14.1 of Attachment 1. On that basis, Pacific National argues that Item 1 in the table prevails over those shift limits. To put it another way, Pacific National argues that even if it acted contrary to cll 4.1.1 and 14.1 as alleged by the ARTBIU, it nevertheless did not contravene a term of the Enterprise Agreement for the purposes of s 50 of the FW Act because neither of those clauses applied on the agreed facts.

218    As I have already explained, when read with cl 18.3.9, the effect of cll 4.1.1 and 14.1 of Attachment 1 is that the extent to which Pacific National is able to use rosters to impose obligations on the employees covered by the Enterprise Agreement to attend at and perform work is limited by the maximum shift lengths that are referred to in those clauses. Item 1 in the table in Attachment 6 recognises the existence of those maximum shift limits. However, Item 1 also expressly contemplates that Pacific National employees working from the depots at Port Augusta, Kalgoorlie and Perth may be required to work hours in excess of those limits. Although there was no evidence to provide any context to Item 1, it may be inferred that there are 'unique circumstances' that exist at each of those three depots, no doubt including the length and isolated nature of the rail corridors operating from those depots. Those circumstances will clearly give rise to occasions on which the employees working on those rail corridors may, from time to time, be obliged to work for longer than the maximum shift lengths that might otherwise be imposed by a roster.

219    It may be seen, therefore, that there is an inconsistency between Item 1 in the table in Attachment 6, on the one hand, and Attachment 1 on the other. Item 1 contemplates that employees working out of the Port Augusta, Kalgoorlie and Perth depots may be obliged to attend at work for longer than would otherwise be required in accordance with any maximum shift limits in a roster developed by Pacific National under cl 18.3, read with cll 4.1.1 and 14.1 of Attachment 1. Further, under Item 1 of the table in Attachment 6, any additional hours worked are immediately treated and paid as overtime, instead of the usual way in which overtime is paid every four weeks based on the number of the hours worked above the 'target hours': cl 14.3 of the main body of the Enterprise Agreement.

220    Accordingly, had it been necessary to determine this ground I would have allowed it.

Ground 4

221    By this ground, Pacific National contends that Item 1 in Attachment 6 also prevails over cl 4.3.1 of Attachment 1. Clause 4.3.1 of Attachment 1 is in the following terms:

Employees who are unable to complete their rostered shift because of an emergency must be relieved from duty and signed off after a maximum period of sixteen (16) hours. In these circumstances, emergency means a major equipment failure or operational emergency or other emergency due to fire, flood, storm, earthquake, explosion, accident, derailment, epidemic or warlike action. The working of extended hours in this circumstance is subject to the crews' indications of their fitness to continue.

222    I have already said that the parties conducted the appeal on the basis that if the Court were to allow grounds 1 and 2 then it would be unnecessary for it to consider any of the remaining grounds of appeal. However, it is necessary to say something about the way in which the Employment Court dealt with cl 4.3.1 of Attachment 1.

223    The way in which the ARTBIU particularised contraventions 2, 6 and 7 in its written application that was lodged in the Employment Court appeared to suggest that it claimed that Pacific National had contravened s 50 of the FW Act by contravening cl 4.3.1 of Attachment 1 of the Enterprise Agreement, as an alternative to its claim that Pacific National had contravened cll 4.1.1 and 14.1. However, that is not the way in which the parties conducted the proceedings before the Employment Court or the way in which the appeal was argued. Instead, as the transcript of the proceedings before the Employment Court reveals, the ARTBIU conducted the proceedings in that Court on the footing that cl 4.3.1 operated as an exception to what it contended were the actual limits on the hours that may be worked by employees covered by the Enterprise Agreement, as provided for in cll 4.1.1 and 14.1. According to the ARTBIU, cl 4.3.1 operates as an exception to those limits because it allows employees to remain at work for up to 16 hours in emergencies. In that way, cl 4.3.1 was considered to be a potential defence on which Pacific National could rely in answer to all of the contraventions.

224    In his oral submissions before the Employment Court, the ARTBIU's counsel made it very clear that the ARTBIU's case in relation to each of the 11 contraventions was that Pacific National had contravened either cll 4.1.1 or 14.1, as the case may be, by failing to relieve and sign specific employees off duty within the shift limits provided for in those clauses. Counsel's submissions relating to cl 4.3.1 were that it operated as an exception to the shift limits in cll 4.1.1 and 14.1, and that it was for Pacific National to establish that this exception applied. More specifically, counsel for the ARTBIU argued that it was for Pacific National to establish the existence of the preconditions that he submitted were required to be established before the exception provided by cl 4.3.1 could be relied on.

225    To illustrate the approach that was taken by the ARTBIU, it is convenient to refer to the following passage taken from the transcript of the proceedings in the Employment Court when counsel for the ARTBIU was making submissions about what he suggested was one of the preconditions to the operation of cl 4.3.1, namely, 'subject to the crews' indications of their fitness to continue':

[COUNSEL]: - - - we say that if they're - if the - we have alleged a contravention of 4.1 of the instrument, of the attachment. [Pacific National] says, 'No, no - this is permitted by 4.3.1'. We say, 'if it is to be permitted by 4.3.1 in exception to 4.1.1, then you need to demonstrate all of these things, or the exception doesn't apply'. And then there's a - there can be an argument, of course, about what a crew's indication of fitness to continue is. But - - -

HIS HONOUR: Yes. Yes.

[COUNSEL]: - - - if your Honour were not satisfied - this is our case - if your Honour were not satisfied that there had been a crew's indication of fitness to continue, then 4.3.1 can't be invoked. Back to a contravention of 4.1. And I hope that explains why, on our conception, your Honour, we haven't alleged a contravention of the emergency provision.

(emphasis added)

226    Somewhat perplexingly, while the Deputy President's findings do reflect the parties' approach to cl 4.3.1 of Attachment 1, it appears that he also believed it was necessary to make findings in the context of contraventions 2, 6 and 7 about whether Pacific National had contravened cl 4.3.1. To further explain the approach taken by the Deputy President in this respect it is necessary to say something about the structure of the Deputy President's reasons.

227    After the Deputy President discussed the background to the ARTBIU's application, identified the issues to be determined and reached conclusions about the proper construction of cll 4.1.1 and 14.1 of Attachment 1, he then focussed on each individual contravention. The Deputy President approached the question of whether the ARTBIU had established that Pacific National contravened a term of the Enterprise Agreement not by reference to cll 4.1.1 or 14.1, where relevant, but by considering whether he was satisfied that Pacific National could rely on cl 4.3.1 as an exception.

228    Nevertheless, in the context of contraventions 2, 6 and 7, where there was no dispute that the relevant employees who were the subject of those contraventions had worked for longer than the 16 hours allowed for by cl 4.3.1, the Deputy President appeared to conclude that not only was he not satisfied that cl 4.3.1 was engaged as an exception but that Pacific National had also contravened cl 4.3. To illustrate, it is convenient to reproduce the Deputy President's findings in relation to contravention 6 that appear at paras 198 to 206 of his reasons for decision:

6.    Service 7SP7 - 6 May 2023

198    The issue is whether the 2-up crew for 7SP7 were prevented from completing their shift for 4 hours and 30 minutes because of the broken rail referred to above.

199    The broken rail caused 7SP7 to be delayed for 2 hours.

200    By that point the crew of 7SP7 had worked 13 hours and 10 minutes after sign on. Service 7SP7 was then amalgamated with 6MP5 in order to provide relief to the 7SP7 crew.

201    [Pacific National] relied on its rejected submission that employees based at Port Augusta were not subject to any shift limits.

202    I find the broken rail was a major equipment failure that directly impacted 7SP7, causing a delay of two hours. By the time the trains were amalgamated, they had been unable to complete their 12-hour shift for 70 minutes. To this point there had not been a breach.

203    I find the crew's subsequent inability to complete their shift until 16 hours and 30 minutes, i.e. for an additional 3 hours and 20 minutes, was not because of any emergency. That extra time was how long it took to be returned to base after the self-contained broken rail delay of 2 hours had been dealt with. There were no more delays to normal train operations after the amalgamation.

204    I conclude the [Enterprise Agreement] was breached after the 13 hours and 10 minutes.

205    I find this breach was a serious contravention. It affected two employees. I find the breach was engaged in knowingly based on inferred knowledge of the relevant managers who planned the shift. I infer they knew that additional time of up to 3 hours and 20 minutes of normal train operations would be required to complete the shift, without regard for any unexpected delays.

206    I find the 16-hour limit was also breached by 30 minutes. This was a serious contravention. I infer [Pacific National's] managers knew of a likely 16-hour breach from returning both drivers to Port Augusta by the normal operation of 6MP5.

229    It may be seen that in this passage the Deputy President made no finding that Pacific National had breached cl 4.1.1 of Attachment 1. What the Deputy President did at paras 198 to 205 of his reasons was deal with the question of whether cl 4.3.1 operated as an exception to a contravention of cl 4.1.1. However, and for reasons that are not at all clear, the Deputy President then went on to make a finding at para 206 that the '16-hour limit … was breached by 30 minutes'. Given that the Deputy President also found that this was a 'serious contravention' it must be that, in addition to finding that Pacific National had contravened cl 4.1.1, he also found that it had contravened cl 4.3.1. It is not clear why it was thought that cl 4.3.1 could at once operate as an exception to contraventions of cll 4.1.1 and 14.1 and, at the same time, also be a term of the Enterprise Agreement that could be contravened for the purposes of s 50 of the FW Act.

230    Notwithstanding these separate findings in the context of contraventions 2, 6 and 7, both parties conducted the appeal on the basis that, if the Court accepted for the purposes of grounds 1 and 2 that the Deputy President erred in finding that Pacific National had contravened cll 4.1.1 and 14.1, then the appeal should be allowed and all of the orders made by the Employment Court must be set aside. That approach is consistent with the way in which the parties conducted the proceedings in the Employment Court. As I have previously explained, the ARTBIU's case in the Employment Court was only ever that Pacific National had contravened cll 4.1.1 and 14.1, and that cl 4.3.1 need only be considered as an exception to limits on the hours that could be worked by employees.

231    As a result, it is unnecessary to say anything further about ground 4.

232    However, it should not be assumed that I agree with the parties' construction of cl 4.3.1 and, in particular, that it operates as some form of an exception to cll 4.1.1 or 14.1, or any other clause in the Enterprise Agreement. In that regard, there appears much to be said for the proposition that cl 4.3.1 is simply a 'term' of the Enterprise Agreement that imposes an obligation on Pacific National. In that regard, the text used in cl 4.3.1 strongly suggests that it places an obligation on Pacific National to relieve from duty and sign off employees after a maximum of 16 hours in circumstances in which those employees are 'unable to complete their rostered shift because of an emergency', as defined. Clause 4.3.1 also provides for an exception to the maximum period of 16 hours, thereby imposing an obligation to relieve from duty and sign off employees within a shorter period depending on 'the crews' indications of their fitness to continue'.

Grounds 5, 6 and 7

233    Having regard to what I have said about cl 4.3.1 of Attachment 1 in the context of ground 4, not only do grounds 5, 6 and 7 proceed on the premise that grounds 1 and 2 have not been made out, they also proceed on the doubtful premise that cl 4.3.1 operates as some form of exception to those clauses. In those circumstances it is unnecessary to say anything further about whether the Deputy President erred in making the various findings of fact that are the subject of grounds 5, 6 and 7.

Ground 8

234    By this ground, Pacific National contends that the Deputy President erred in making a declaration that contraventions 2 to 7 and 10 were 'serious contraventions' for the purposes of s 557A of the FW Act.

235    At the relevant time, s 557A of the FW Act was in the following relevant terms:

557A    Serious contravention of civil remedy provisions

(1)    A contravention of a civil remedy provision by a person is a serious contravention if:

(a)    the person knowingly contravened the provision; and

(b)    the person's conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.

Note:    For the liability of bodies corporate for serious contraventions, see section 557B.

Example:    Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.

A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full (even if the employer does not know the exact amount of the underpayment) and that contravention is part of a systematic pattern of conduct by the employer. The systematic pattern of conduct of the employer may relate to more than one employee and may consist of different contraventions.

Systematic pattern of conduct

(2)    In determining whether the person's conduct constituting the contravention of the provision was part of a systematic pattern of conduct, a court may have regard to:

(a)    the number of contraventions (the relevant contraventions) of this Act committed by the person; and

(b)    the period over which the relevant contraventions occurred; and

(c)    the number of other persons affected by the relevant contraventions; and

(ca)    the person's response, or failure to respond, to any complaints made about the relevant contraventions; and

(d)    except if the provision contravened is section 535 - whether the person also contravened subsection 535(1), (2) or (4) by failing to make or keep, in accordance with that section, an employee record relating to the conduct constituting the relevant contraventions; and

(e)    except if the provision contravened is section 536 - whether the person also contravened subsection 536(1), (2) or (3) by failing to give, in accordance with that section, a pay slip relating to the conduct constituting the relevant contraventions.

(3)    Subsection (2) does not limit the matters that a court may have regard to.

(4)    Subsection 557(1) does not apply for the purposes of determining whether the person's conduct was part of a systematic pattern of conduct.

(5)    Subsection (4) does not otherwise affect the operation of subsection 557(1) in relation to serious contraventions of civil remedy provisions.

…

Application for a serious contravention order and alternative orders

(6)    If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person's application under subsection 539(2) must specify the relevant serious contravention.

(7)    If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:

(a)    is not satisfied that the person has committed a serious contravention against that provision; and

(b)    is satisfied that the person has contravened that provision;

the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.

236    Section 557A was amended by the Fair Work Legislation Amendment (Closing Loopholes No 2) Act 2024 (Cth). However, as was noted in Fair Work Ombudsman v Blue Sky Kids Land Pty Ltd (in liq) (No 3) [2024] FCA 785 at [759], those amendments commenced on 27 February 2024 and do not apply retrospectively: see s 114 in Sch 1 of the FW Act.

237    Accordingly, a finding that a contravention of a civil remedy provision by a person was a 'serious contravention' for the purposes of s 557A, at the relevant time, required proof that:

(1)    the person knowingly contravened the provision; and

(2)    the person's conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.

238    A body corporate knowingly contravenes a civil remedy provision if the body corporate expressly, tacitly or impliedly authorises the contravention: s 557B(1) of the FW Act. In determining whether the person's conduct constituting the contravention was part of a systematic pattern of conduct for the purposes of s 557A(1)(b), a court was permitted to have regard to, but was not limited by, the various factors set out in s 557A(2).

239    When summarising the ARTBIU's case the Deputy President said the following at paras 5 and 6 of his reasons for decision:

The contraventions are alleged to be 'serious' within the meaning of s 557A based on [Pacific National] knowingly contravening the provision as part of a pattern of conduct relating to more than one person.

[Pacific National's] state of knowledge is alleged to have been of expressly, tacitly, or impliedly authorising the systematic pattern of contraventions, through its Integrated Planning Services, with staff having knowledge of the likely excessive duration of each journey at the relevant times.

(emphasis added)

240    It may be noted that the Deputy President incorrectly suggested that Pacific National was alleged to have a state of knowledge of a systematic pattern of contraventions. By contrast, what was alleged, and what s 557A(1) required for there to be a 'serious contravention', was that Pacific National 'knowingly contravened' s 50 of the FW Act and, separately, that its conduct constituting the contravention was 'part of a systematic pattern of conduct relating to one or more other persons'. As will be seen, the findings made by the Deputy President that contraventions 2 to 7 and 10 were 'serious contraventions' reflected his erroneous summary of the ARTBIU's case. To explain why, it is necessary to set out the Deputy President's findings on the question of whether contraventions 2 to 7 and 10 were 'serious contraventions' in full.

241    In relation to contravention 2 the Deputy President said at para 159:

I find the contravention was a serious contravention because the same conduct affected three drivers, and [Pacific National] knew of a likely contravention if the crew did not leave the train to travel by light vehicle, given their unchallenged reasons for remaining on the train.

(emphasis added)

242    In relation to contravention 3 the Deputy President said at para 173:

I find this was a serious contravention because the same conduct affected two employees, and [Pacific National] had implied or tacit knowledge of the likely breach through its relevant managers having knowledge of the likely excessive shift before it started. That was through their knowledge of the delays in fuelling, attaching the crew van and completing the required brake test.

(emphasis added)

243    In relation to contravention 4 the Deputy President said at para 186:

I find this breach was a serious contravention. It affected two employees. I infer [Pacific National's] relevant managers knew of significant waiting times from having to wait for its own trains to pass at crossing loops. I find [Pacific National] had implied or tacit knowledge of a likely breach through its managers' knowledge.

(emphasis added)

244    In relation to contravention 5 the Deputy President said at para 197:

I find the contravention was a serious contravention. The same conduct affected each crew member, and [Pacific National] had implied or tacit knowledge of a likely breach through its managers' decision to amalgamate the services, in a context of the service then operating normally until sign off.

(emphasis added)

245    In relation to contravention 6 the Deputy President said at paras 205 to 206:

I find this breach was a serious contravention. It affected two employees. I find the breach was engaged in knowingly based on inferred knowledge of the relevant managers who planned the shift. I infer they knew that additional time of up to 3 hours and 20 minutes of normal train operations would be required to complete the shift, without regard for any unexpected delays.

I find the 16-hour limit was also breached by 30 minutes. This was a serious contravention. I infer [Pacific National's] managers knew of a likely 16-hour breach from returning both drivers to Port Augusta by the normal operation of 6MP5.

(emphasis added)

246    In relation to contravention 7 the Deputy President said at paras 214 to 216:

I conclude this breach was a serious contravention. It involved more than one employee. And I conclude [Pacific National's] knowledge of a likely breach is established by the fact of the normal operation of the service taking 12 hours without reaching its destination.

I conclude the 16-hour limit was exceeded following the emergency. While [Pacific National] was taking steps to facilitate the crew's sign off at Cook, they were insufficient to avoid breach of the 16-hour limit. I conclude [Pacific National] breached the 16-hour limit in these circumstances.

I conclude this was not a serious contravention because I am unable to find [Pacific National's] relevant mangers had knowledge of a likely breach of the 16-hour limit.

(emphasis added)

247    In relation to contravention 10 the Deputy President said at paras 251 to 254:

I find [Pacific National's] relevant managers likely knew the Cook to Port Augusta section of 2PS7's journey would be so delayed from using only one locomotive that it would not be able to meet its sectional run time. I accept [Pacific National] did so as a solution to the loss of power in a different service more than 10 hours before the fresh 2PS7 crew was due to sign on at Cook. For unexplained reasons [Pacific National] decided on this solution.

While a loss of power in any locomotive is a major equipment failure, the only connection between that happening to NR76 and the crew's slow journey was [Pacific National's] decision, made many hours before the crew signed on, to replace NR76 with one of 2PS7's locomotives. The slower speed was a planned and known factor from the outset; it was not an unexpected or unforeseen problem.

…

I conclude the [Enterprise Agreement] was breached on this occasion. As the contravention resulted from a deliberate decision to operate a slow service, and it affected two employees, I conclude it was a serious contravention.

(emphasis added)

248    The following observations can be made from these findings:

(1)    Although the Deputy President was required by s 557A(1)(b) of the FW Act to make findings about whether Pacific National's conduct constituting contraventions 2 to 7 and 10 was, in the context of each of those contraventions, part of a systematic pattern of conduct relating to one or more other persons, he made no such findings. Instead, the Deputy President erroneously considered that it was enough to satisfy s 557A(1) that Pacific National's conduct 'involved' or 'affected' more than one employee.

(2)    In the context of contraventions 2 to 7 the Deputy President was required to determine whether the ARTBIU had proved that Pacific National 'knowingly contravened' s 50 of the FW Act. Instead, the Deputy President made findings that Pacific National had knowledge of a 'likely breach' of the relevant provisions of the Enterprise Agreement. Clearly, knowledge of a 'likely' breach of the Enterprise Agreement is not the same as having 'knowingly contravened' s 50 of the FW Act.

(3)    In the context of contraventions 3, 4 and 5 the Deputy President found that Pacific National had 'implied or tacit knowledge of a likely breach'. While the Deputy President did not expressly make the same finding in relation to the other contraventions, it may be inferred that he took a uniform approach. However, s 557A(1) required proof that Pacific National 'knowingly contravened' s 50 of the FW Act. As Pacific National is a body corporate, proof that it had knowingly contravened s 50 could be established under s 557B(1) by proof that it had 'expressly, tacitly or impliedly authorised the contravention'. Instead, what the Deputy President did was blend the elements of ss 557A(1) and 557B(1) and erroneously apply a test of 'implied or tacit knowledge of a likely breach'.

249    It follows that the Deputy President erred in declaring that contraventions 2 to 7 and 10 were 'serious contraventions' for the purposes of s 557A of the FW Act. Had it been necessary to decide, I would have allowed ground 8.

Conclusion

250    I would allow the appeal. I would also make an order that the declarations and other orders made by the Employment Court be set aside and, in their place, make an order that the ARTBIU's application for a pecuniary penalty be dismissed.

Associate:

Dated:    9 October 2026

ANNEXURE