FEDERAL COURT OF AUSTRALIA

Australian Workers’ Union v John Holland Pty Ltd [2010] FCA 1432

THE COURT ORDERS THAT:

1.    The Applicant to file submissions in respect of proposed declaratory relief by 4.00 pm on 14 January 2011.

2.    The Respondent to file submissions in reply by 4.00 pm on 21 January 2011.

3.    The matter be listed for further hearing at 10.15 am on 2 February 2011.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This is an application for declarations pursuant to:

    Item 2(2) of Sch 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“the Transitional Act”); and

    Section 562 and s 563 of the Fair Work Act 2009 (Cth) (“the Act”); and

    Section 21 of the Federal Court of Australia Act 1976 (Cth).

2    In its application filed 29 July 2010, the applicant union sought the following orders:

1.    a declaration that the respondent is bound by the terms of the Thiess John Holland AirportLink Northern Busway and Airport Roundabout Upgrade Project Agreement (“the Agreement”).

2.    a declaration that the class of workers:

(a)    who are employed by the Respondent, and

(b)    whose employment is covered by the terms of the Agreement, and

(c)    who are required to work the rotating shift pattern set out in the Statement of Claim;

are “Shift Workers” within the meaning of that expression in clause 2 of the Agreement for the whole of the period that the Employees’ ongoing work pattern is maintained in accordance with that rotating shift pattern, including periods in which the Employees are working shifts other than afternoon shift or night shift.

3.    a declaration that the respondent is obliged by the Agreement to pay Shift Workers referred to in clause 2 above, overtime payments at the rate of double time for all overtime hours worked between Monday and Saturday.

4.    such further or consequential declarations and/or orders as the Court may deem necessary to give full effect to the opinion of the court in relation to the declarations sought herein.

3    At the hearing, Counsel for the respondent submitted that the first declaration sought was that the respondent was bound by the Agreement, but in fact this was an issue agreed between the parties (TS p 11 ll 15-16). In that light, the applicant did not press for the first declaration (TS p 14 ll 20-25). In subsequent written submissions, however, the respondent appeared to resile from this position. I will return to this issue later in the judgment.

AGREED FACTS

4    Helpfully in these proceedings, the parties have filed a Statement of Agreed Facts and Issues.

5    The agreed facts are as follows:

1.    The applicant is an organisation of Employees registered pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth).

2.    The respondent is currently engaged on a joint venture construction project in Brisbane in the State of Queensland known as the Thiess John Holland AirportLink Northern Busway and Airport Roundabout Upgrade Project (“the Project”).

3.    The applicant and respondent are parties to the Agreement, which agreement commenced operation on or around 21 November 2008 pursuant to the (now repealed) Workplace Relations Act 1996 (Cth).

4.    Since February 2010, the respondent has employed (and it continues to employ) individuals who perform work on the Project for which classification and/or rates of pay are prescribed by the Agreement (“the Employees”).

5.    The Agreement continues to have legal force and effect under the Act and transitional legislation, and continues to cover and apply to the Employees.

6.    The applicant is entitled to represent the industrial interests of the Employees under the Act.

7.    A number of Employees work a shift roster which comprised of the following components which are performed in the following rotating pattern:

(a)    7 consecutive days from 6.00 am to 6.30 pm

(b)    3 consecutive rostered days off (“RDOs”)

(c)    7 consecutive “afternoon shifts” from 6.00 pm to 6.30 am; and

(d)    consecutive RDOs

(“the 7374 Roster”).

AGREED ISSUE

6    The agreed issue for decision is described in the Statement of Agreed Facts and Issues as follows:

8.    The applicant and the respondent are in dispute about the period of time that the Employees are “Shift Workers” (as that expression is defined in clause 2 of the Agreement) for the purposes of the Agreement, including for the purpose of calculating the Employees’ entitlements to shift loadings and overtime pursuant to clauses 19 and 29 of the Agreement respectively.

9.    In these proceedings:

    the applicant contends that the Employees are “Shift Workers” for the entire duration of the 7374 roster, whereas

    the respondent contends that the Employees are “Shift Workers” only during that part of the 7374 roster described in clause 7(c) above, that is when the Employee is actually working 7 consecutive “afternoon shifts” (as that expression is defined in clause 2 of the Agreement).

10.    The primary issue which arises for determination by the Court concerns the proper interpretation of the expression “Shift Worker” in clause 2 of the Agreement, and whether an Employee who works the 7374 Roster is relevantly a “Shift Worker” for:

(a)    the entire duration of the 7374 Roster; or

(b)    only during that part of the 7374 Roster when the Employee is actually working 7 consecutive “Afternoon Shifts” (as that expression is defined in clause 2 of the Agreement), and if so, the exact duration of that period;

for the purposes of the Agreement, including for the purpose of calculating the Employees’ entitlements to shift loadings and overtime pursuant to clauses 19 and 29 of the Agreement respectively.

“SHIFT WORKER”

7    A copy of the Agreement is annexed to the affidavit of Mr Derek Broanda sworn 15 September 2010.

8    Clause 2 of the Agreement defines “Shift Worker” for the purposes of the Agreement, so far as relevant as follows:

Shift Worker means an Employee engaged on either Night Shift or Afternoon Shift for five or more continuous shifts.

9    “Afternoon Shift” is defined by clause 2 to mean “a shift commencing on or after 12 midday and before 8pm”. “Night Shift” is defined by clause 2 to mean “a shift starting at or after 8pm and before 5am”.

10    The Agreement also provides for payment of shift loadings for Shift Workers (clause 19) and overtime (clause 29). These clauses are as follows:

19. Shift Loading

19.1 Shift Workers will be paid the following rates for Ordinary Hours Worked:

19.1.1 Afternoon shift for TWO, EW and MTW grades – Wage Rate plus 25% of the Wage Rate

19.1.2 Night Shift for TW, EW and MTW grades – Wage Rate plus 50% of the Wage Rate

19.1.3 Afternoon Shift for CW and MCW grades – Wage Rate plus 15% of the Wage Rate

19.1.4 Night Shift for CW and MCW grades – Wage Rate plus 40% of the Wage Rate.

19.2 Shift loading shall not apply to shift work performed on a Saturday or Sunday.

19.3 Where an Employee works for less than five continuous shifts the overtime rates prescribed in clause 29 of this Agreement will be payable in lieu of the applicable shift loading.

19.4 Under no circumstances shall an Employee be entitled to shift loading pursuant to this clause and overtime rates under clause 29 of this Agreement at the same time. For the avoidance of doubt an Employee shall only be entitled to shift loading or overtime but not both.

…

29. Overtime

29.1 All time worked beyond an Employee’s Ordinary Hours, shall be deemed overtime.

29.2 Overtime on weekdays and Saturday shall be paid for a one and half times the ordinary Wage Rate for the first two hours and at double the Wage Rate for all time thereafter. Overtime on Sunday will attract double the Wage Rate.

29.3 All Overtime for Shift Workers will attract double the Wage Rate.

29.4 An Employee recalled to work overtime after leaving the Project shall be paid for a minimum of four hours work at the rate of double time.

11    Clause 2 of the Agreement defines “Ordinary Hours” as meaning:

the ordinary hours that the employee is required to work, being 7.2 hours per day, Monday to Friday, and which shall average 35 hours per week over a 52 week period.

12    In relation to “Shift Work”, I also note clause 28 of the Agreement which provides as follows:

28. SHIFT WORK

Where shift work is required the Company shall fix the shift roster and starting and finishing times for the shift as required. Shift rosters and the shifts of individual Employees may be changed on twenty four (24) hours notice by the Company, or a lesser period by agreement.

COMPLETE NATURE OF AGREEMENT

13    Clause 7 of the Agreement provides, in summary, that the Agreement applies to the exclusion of any other instrument. More particularly, clause 7 reads as follows:

7. RELATIONSHIPS WITH OTHER AWARDS AND AGREEMENTS

7.1 It is intended by the Parties that the terms of this Agreement are exhaustive and that this Agreement will apply to the exclusion of any industrial agreement/s, award/s, order/s, preserved entitlement/s or condition/s (including any protected award condition/s, preserved notional term/s and protected notional condition/s) enterprise agreement/s certified agreement/s made under a State law or the WR Act or any unregistered agreement/s which may otherwise apply to the employment of the Employees or the Project.

7.2 In interpreting this Agreement the Parties agree that there is a presumption that all awards, state awards, preserved state awards, notional agreement preserving state awards, preserved notional terms or protected notional conditions as defined by the WR Act, enterprise agreements, certified agreements or workplace agreements made under a State or Territory law or the WR Act or any unregistered agreements do not apply unless otherwise specifically stated.

14    I also note clause 8.1 of the Agreement, which provides:

8.1 The Parties intend and agree that this Agreement prescribes comprehensive terms and conditions of employment that are to apply for the duration of this Agreement.

SUBMISSIONS OF THE APPLICANT

15    The applicant filed no written submissions in respect of the issue for decision identified in the Statement of Agreed Facts and Issues. However extensive oral submissions were made at the hearing before me.

16    In summary Mr Herbert for the applicant submitted as follows:

    The intention of the relevant provisions in the Agreement is that an employee retains the characteristic of being a Shift Worker throughout the work cycle as long as they enjoy that characteristic (TS p 15 ll 22-24).

    All relevant authorities suggest that the provision in the Agreement must be read in context and sensibly, and having regard to the practical realities of the workplace and the industrial context in which an agreement of this kind is reached (TS p 16 ll 36-42).

    It appears that the Agreement recognises two kinds of workers – namely day workers or Shift Workers. There is no “hybrid” worker. This inference is supported by clause 31 of the Agreement which names day workers and Shift Workers in the context of meal breaks (TS p 28 ll 8 – 46).

    This categorisation of worker in the Agreement suggests that workers do not change classifications on a rotating basis (TS p 17 ll 12-27).

    A day worker means an employee engaged to commence work between 5.00 am and 12 midday on a regular basis. In the 7374 roster, employees only work that period for seven days out of every 21 days. This is not on a “regular basis” (TS p 18 ll 1-27).

    The employer sets the rosters. If employees are on the 7374 roster, they are Shift Workers for that roster.

    The disruption to lifestyle which underpins extra benefits for Shift Workers beyond those enjoyed by day workers occurs in the 7374 rotation. The 7374 rotation is a deliberate rotation, not merely a happenstance where an employee may unexpectedly need to be working at night or in the afternoon. In an industrial context that is why one would assume that a Shift Worker penalty or a shift loading is applicable to all of the hours worked in the roster (TS p 23 ll 14-30).

    In summary, the employees on the 7374 roster are Shift Workers until they are completely taken off the shift arrangement which has the characteristic of five or more overtime shifts. They remain Shift Workers as described in the Agreement and are entitled to the benefits that are accrued to Shift Workers throughout the Agreement. The applicant in this situation is entitled to the declarations set out in clause 2 and clause 3 of the application (TS p 30 ll 10 -15).

    The respondent is wrong in claiming that there are potentially more classifications for employees than either “day workers” or “Shift Workers” as identified in the Agreement (and further, that this “third” class of worker has its conditions underpinned by the award). It is clear from clause 7 of the Agreement that the terms of the Agreement are intended to be absolutely exhaustive and to the exclusion of all other instruments (TS p 66 ll 18-33).

SUBMISSIONS OF THE RESPONDENT

17    In relation to the issue identified for decision the respondent filed written submissions and made extensive oral submission at the hearing. In summary, these submissions were as follows:

    Clause 28 of the Agreement provides, inter alia, that where shift work is required the Company shall fix the shift roster and starting and finishing times for the shift as required. The expression “shift” should be interpreted to mean “Afternoon Shift” or “Night Shift” and therefore shift work should be interpreted to mean work performed during such shifts. This interpretation is supported by the fact that the expressions “Afternoon Shift” and “Night Shift” are both defined by reference to a “shift” starting and finishing within certain designated hours.

    Not all employees who do shift work are “Shift Workers” pursuant to the Agreement. Thereby shift work within a shift roster will not directly entitle an employee to be classified as a “Shift Worker”.

    The definition of “Shift Worker” in clause 2 of the Agreement is prescriptive and restrictive.

    The expressions “Shift Worker” and “Day Worker” within the Agreement are not the only possible classifications for employees. A person who does not fall within the definition of a “Day Worker” will not necessarily be a “Shift Worker”. Further, the notions of Day Worker and Shift Worker are not alternatives. It is not the case that a worker is one or the other, or that the worker moves from one category or the other depending on the roster or the pattern worked (TS p 32 ll 38 – 44).

    The expression “engaged on” Night Shift or Afternoon Shift in the definition of Shift Worker in clause 2 is not defined in Agreement and thereby must be given its ordinary or natural meaning within the context of that definition. It follows that a person will be “engaged” or “busy” or “occupied” on “Afternoon Shift” or “Night Shift” only when the person is actually working such a shift. Once the employee ceases working the requisite number of consecutive “Afternoon Shifts” or “Night Shifts” he/she will cease to be a “Shift Worker” during any other part of the 7374 roster.

    The Court should not adopt the applicant’s interpretation of “Shift Worker” because:

    it is in conflict with the clear and express words of the definition of “Shift Worker”;

    it involves reading words into the definition of “Shift Worker”;

    it involves first looking at the roster pattern then interpreting “Shift Worker”. This approach is wrong in principle;

    it is apt to have ridiculous results, eg five consecutive “Afternoon Shifts” across two roster cycles not satisfying the definition of “Shift Worker”.

    Clause 10 of the Agreement requires the respondent to nominate the nature of the contract of employment with individual employees, that is whether the employees are employed on a full-time basis, part-time basis, on specific tasks or on a casual basis. The Agreement does not specify that an employee is to be engaged as a day worker or alternatively as a Shift Worker (TS p 39 l 45 – p 40 l 7).

    On the face of the Agreement, a person is a “Shift Worker” only while they are working as a Shift Worker. In the clause 2 definition of “Shift Worker” there is a complete absence of any attempt to link the definition to rosters or more specifically, shift rosters (TS p 41 ll 24-36). Accordingly, it follows from the definition of “Shift Worker” in clause 2 that a person becomes a Shift Worker once they work five or more continuous shifts on either Night Shift or Afternoon Shift, that the person continues to be a Shift Worker for so long as he or she actually works those continuous shifts. (TS p 42 ll 10 -40).

    Clause 14 of the Agreement requires the respondent to appoint each Employee at the start of their employment to a classification level based on skills, qualification and experience and in consideration of the substance of the duties required to be carried out at that time on the Project. Clause 14 then proceeds to set out classifications and definitions applicable for Employees. It is notable that this clause does not require the respondent to classify employees as day workers or Shift Workers (TS p 43 ll 35-42).

    In relation to clause 31 of the Agreement which the applicant submits supports the inference that day workers and Shift Workers are alternatives and cover all employees, the objective intention of 31.1 and 32.2 is to confer entitlements that are over and above the legislative minimum upon specific people doing specific kinds of work. So, not every employee is covered by the entitlements in clause 31, only day workers and Shift Workers. There is another class of workers whose entitlements are only covered by the legislative minimum (TS p 51 ll 40-45, TS p 47 l 40 – p 52 l 15).

    Shift Worker in clause 2 of the Agreement is defined as: “engaged on either night shift or afternoon shift for five or more continuous shifts”. By the use of the words “engaged on” immediately followed by the qualifying nouns of “night shift” or “afternoon shift”, the phrase should be interpreted to mean that a person is engaged on if they are actually working said afternoon shifts or said night shifts, ie a person is engaged on work when they are actually performing as opposed to the “point of engagement” (as apparently argued by the AWU). So there is a distinction between “engaged on” (as is in the agreement) and “engaged as” (as is the basis of the AWU’s submission in this respect) (TS p 55 ll 15-40).

CONSIDERATION OF AGREED ISSUE

18    The key issue for determination in these proceedings concerns the construction of the Agreement, and in particular issues pertaining to “Shift Worker” as defined in clause 2.

19    In Construction, Forestry, Mining and Energy Union v Ulan Coal Mines Ltd [2009] FCA 326 Flick J outlined the following principles as relevant to considering the correct construction of a clause in a certified agreement:

26.    In the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184:

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they 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. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. 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. ...

These observations were cited with approval in Amcor Ltd: [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039, 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515, 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512, 176 IR 183 per Jagot J at [82]. The “words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities”: Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].

20    I respectfully agree with these comments of his Honour. In that light I make the following observations in respect of the Agreement and the submissions of the parties.

21    First, the parties to the Agreement before me are, on the one hand, one of the largest unions in Australia, and on the other hand a major Australian corporation specialising in substantial construction, engineering and building projects and services. Works in the Brisbane area in respect of the project the subject of the Agreement are well-known, important and extensive. I do not accept that parties with the industrial experience and resources of these parties would leave to chance for the purposes of the Agreement such important issues as definition of a class of workers, including, as submitted by counsel for the respondent, contemplation of a third class of workers not identified by the Agreement and whose entitlements are covered only by the legislative minimum and not by the Agreement. I make this observation also in light of clause 7 of the Agreement to which I have already referred.

22    Second, while clause 10 of the Agreement identifies the basis upon which the Employee is employed by the respondent in respect of engagement on a full-time, part-time or casual basis or for specific tasks, in my view the Agreement also clearly draws a distinction between “Day Worker” and “Shift Worker” in clause 2 of the Agreement. I consider it important that clause 2 specifically identifies “Day Worker” and “Shift Worker” as specific categories of Employee. To that extent the Agreement implements a further layer of identification of employment in respect of individual employees.

23    It is trite to observe that the distinction recognised in the Agreement between Day Worker and Shift Worker clearly defines an employee by reference to the hours of the day at which the Employee carries out work, whereas the distinction between full-time, part-time, casual or specific tasks clearly refers to the pattern of work in which an Employee is engaged. It is reasonable for the Agreement to provide for these different classifications, and indeed it follows that there will be significant overlaps and variations across the employment spectrum in respect of Employees and their classifications according to both pattern and hours of work. So, simply by example, it is clear that the Agreement contemplates that an Employee covered by the Agreement could be a part-time Day Worker, or a full-time Shift Worker.

24    Third, the distinction between Day Workers and Shift Workers is recognised throughout the Agreement. In addition to the definition of Shift Worker in clause 2, provisions for shift loading (clause 19), and provisions for overtime (clause 29) to which I have already referred, I also note for example:

    clause 30.3 which makes special provision for Shift Workers who rotate from one shift to another;

    clause 31 which provides for Meal and Rest Breaks, and specifies (inter alia) that Day Workers and Shift Workers working more than five Ordinary Hours each day are entitled to one daily paid rest break and one daily unpaid meal break.

25    Fourth, the terms of the Agreement support the inference that there is no concept of routine rotation between categories of Shift Worker and Day Worker. In particular, I note clause 30.3 which specifically contemplates that Shift Workers may rotate from one shift to another. “Day Workers” are not defined by clause 2 of the Agreement as working a “shift” – rather Day Workers are simply defined as meaning:

…an Employee engaged to commence work between 5am and up to 12 midday on a regular basis.

26    Having said that, clause 11.1 requires employees to be available, ready and willing to perform such work, including shift work and overtime, as required by the Company. In that light, and from the definition of “Shift Worker” in clause 2, the Agreement contemplates that a Day Worker could become a Shift Worker if they are “engaged on either Night Shift or Afternoon shift for five or more continuous shifts”.

27    Fifth, the respondent submits that clause 14 of the Agreement proceeds to set out classifications and definitions applicable for Employees, and that it is notable that clause 14 does not require the respondent to classify employees as Day Workers or Shift Workers. In my view however this is of no relevance to whether the Agreement also classifies Employees as Day Workers or Shift Workers. Indeed, I note that clause 14 also does not specifically refer to whether Employees are full-time, part-time, casual or specific task, which is a very important classification of employee and the subject of clause 10. The respondent appears to accept in its submissions that clause 14 should be read with clause 10 (TS p 43 ll 37-39). In my view a similar process of reasoning requires Employees to be classified according to clause 14, and designated either Day Worker or Shift Worker in terms of the Agreement.

28    Sixth, the Agreement clearly contemplates that both Day Workers and Shift Workers may be required to work overtime in excess of Ordinary Hours (clause 9.4) and be therefore entitled to payment of an overtime rate (clause 29). Clause 9.4 also appears to contemplate that all Employees – and not merely Day Workers – may be required to work shift work in excess of the Ordinary Hours during the working week and at weekends. From this, it is clear that the Agreement contemplates that Day Workers who work extra hours beyond their Ordinary Hours will receive overtime payments, and similarly that Day Workers who work shifts will receive shift loadings. However it is clear from the definition of “Shift Worker” in clause 2 that the parties intended that an Employee be treated differently when the Employee works more five or more continuous shifts. The fact that the Agreement contemplates a category of worker called “Shift Worker” suggests that, indeed, “Shift Workers” are a different category of Employee from Day Workers who sometimes work overtime or shift work.

29    Seventh, the respondent made extensive submissions in relation to the meaning of “engaged” for the purposes of the definition of “Shift Worker” in clause 2 of the Agreement. In summary, the respondent’s position is that “engaged on” in the context of clause 2 means that a person is “engaged on” shift work if they are actually working afternoon shifts or night shifts, as distinct from being “engaged as” a particular type of employee. The respondent relied particularly on comments of MacKinnon LJ in Benninga (Mitcham), Limited v. Bijstra (1946) 1 KB 58, at p 62 where his Lordship said:

The word “engaged” is deplorably ambiguous. An employer “engages” a servant when he makes an agreement with him for his services. A workman is “engaged” on work when he is actually carrying it out.

30    While there is merit to the respondent’s submission I do not consider that “engaged on” in the context of clause 2 of the Agreement should be read as narrowly as the respondent contends. Indeed, as a matter of drafting the Agreement appears commonly to use “engaged on” interchangeably with “employed on”, as distinct from “actually working on” as the respondent submits. I note in particular clause 10 of the Agreement, which so far as relevant provides as follows:

…

10.2 A casual Employee is one who is engaged on an hourly basis…

…

10.4 Part-time Employees may be engaged on such hours and terms as are advised to the Employee…

(emphasis added)

31    Clause 10 is particularly relevant in my view, not only because “engaged on” in that clause appears to mean “employed on”, but because clause 10 refers to the basis upon which an Employee works pursuant to the Agreement. In my view it would be absurd to interpret clause 10 as meaning, for example, that an Employee was a part-time Employee only when actually working part-time. Similarly, it does not follow that a Day Worker is a Day Worker only when actually working between 5.00 am and 12 midday, or that a Shift Worker is a Shift Worker only when actually working afternoon or evening shifts.

32    In conclusion, I consider that the Agreement clearly provides for a designation of Employees as “Shift Workers”. An Employee who works five or more continuous shifts is not only a “Shift Worker” when actually working those shifts but is a “Shift Worker” for the purposes of the Agreement at all times during the roster when working those shifts. It follows, therefore, that Employees are “Shift Workers” for the entire duration of the 7374 roster as described in the Statement of Agreed Facts and Issues.

FIRST ORDER SOUGHT

33    As I noted earlier in this judgment, it appeared at the hearing that the parties had agreed that the respondent was bound by the terms of the Agreement. I note at the hearing, however, that both parties indicated a wish to make submissions as to the form declaratory relief (if any) should take. Mr Herbert for the applicant, for example, submitted:

Although I hasten to say that since that application was drawn, the parties have perhaps very slightly re-characterised the ambit of the debate, and it may be that if your Honour were to grant leave to do so, that the parties or the applicant, certainly, may seek to be heard in relation to the question of the precise wording of the declaration, in the event that your Honour accedes to the arguments in relation to the merits of the matter if – in case your Honour is not certain that that form of wording is precisely apposite to the way the argument has fallen now. (TS p 30 ll 17-23)

34    Similarly Ms Moody for the respondent submitted:

We consider that – if I could approach the question this way and I do apprehend exactly what your Honour is directing the question towards – we consider that your Honour has jurisdiction to say what the expression shift worker in clause 2 of the agreement means. You may agree with what we say it means, you may agree with what the AWU means. But we do consider that your Honour has jurisdiction to direct the court’s attention to the question. And whose opinion your Honour concords with is entirely a matter for the court. And obviously the declaratory relief which may flow from your Honour forming an opinion about that particular issue is a matter, we say, for submissions. (TS p 11 ll 35-43)

35    That parties may wish to make further submissions as to the form of declaratory relief to be made by the Court once the Court informs the parties of its views, is neither uncommon nor unexpected in litigation. However the respondent in written submissions has now contended as follows:

While the Applicant's counsel, during the hearing on 27 October 2010, abandoned any desire on the Applicant to seek the declaration set out in paragraph 7(i) of the written submissions, and promised to submit some reformulation of paragraphs 7(ii) and (iii) which was in conformance with the Agreed Issue, that has not occurred. Consequently, the Respondent objects to the whole of paragraph 7, and maintains that the only declaratory relief which the Court may give is in respect of the Agreed Issue. (Respondent’s Submissions in Reply filed 3 November 2010 para 2.22)

36    In my view the respondent is not entitled to resile from its position at the hearing that it is bound to the terms of the Agreement for the reason it has proffered. It is clear from the transcript that, depending on the view of the Court, both parties would potentially seek a refinement of the declaratory relief to be made in the circumstances of the case, and both parties would seek to make submissions. It is reasonable for the Court to allow the parties the opportunity to make submissions as to the form of declaratory relief now that they have my views in this judgment of the primary issue under consideration. It is not, however, reasonable for the respondent to now misrepresent the comments of Counsel for the applicant at the hearing, and to exaggerate his submission from a suggestion that further submissions be made, into a promise by him to submit a reformulation of the declaratory relief sought which in turn could affect the respondent’s concession that it was bound by the Agreement. In my view, these submissions by the respondent are both surprising and completely unmeritorious.

37    In the circumstances of this case, I do not propose to make a declaration in the form of the first order sought, because it is unnecessary for me to do so in light of the respondent's agreement to its terms.

JURISDICTION

38    Finally, the respondent has contested the jurisdiction of this Court to make the orders sought by the applicant in these proceedings.

39    In its submissions filed 27 October 2010, the applicant contends that the original jurisdiction of the Court to make declaratory orders in this matter arises, alternatively, by:

    section 39B(1A) of the Judiciary Act 1903 (Cth); or

    section 562 of the Act.

40    In its submissions filed in reply on 3 November 2010, the respondent identifies that the Court’s original jurisdiction could be enlivened, inter alia, by those provisions or alternatively by Item 21 of Sch 17 of the Transitional Act. However, the respondent submits that in these proceedings the agreed issue is not a matter which arises under the Act for the purpose of s 562.

41    It is apparent on the face of the legislation identified by the parties that the Court does have jurisdiction to make the declaratory orders sought in these proceedings. Indeed two alternative sources of the Court’s jurisdiction to make the declaratory orders sought in these proceedings are enlivened.

42    First, s 39B(1A)(c) of the Judiciary Act confers original jurisdiction on the Court including:

…jurisdiction in any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

43    This is a broad conferral of jurisdiction by the Parliament. A matter will properly be said to arise under a law made by the Parliament if the right or duty in question “owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law”: R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Barrett (1945) 70 CLR 141 at 154. In this light I also note comments of the Full Court in Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council (2009) 178 FCR 252 at [29] where their Honours observed:

Here again, in our view, the rights and duties at issue owed their existence to the regime of negotiation and registration of workplace agreements erected by the WR Act. The threshold issue to be determined was the definitional question with which the trial Judge was concerned as identified at [3]-[8] above. For these reasons, the matter resolved by the Primary Judgment can truly be said to have arisen under the WR Act.

44    In these proceedings it is clear that the rights and duties of the parties, as defined by the terms of the Agreement, owe their existence to Item 2(2) of Sch 16 of the Transitional Act and thereby arise under a Federal law.

45    Second, while in my view there is substance to the submissions of the respondent that the agreed issue is not a matter which arises strictly under the Act, nonetheless it is clear that Items 21, 22 and 23 of Sch 17 of the Transitional Act are effectively “mirror provisions” to ss 562, 563 and 564 of the Act. The consequence of this is that the matter may correctly be regarded as arising under Items 21, 22 and 23 of Sch 17 of the Transitional Act, this being an alternative source of the Court’s jurisdiction.

46    In either event I am satisfied that the Court has jurisdiction to make the declaratory orders sought in these proceedings.

CONCLUSION

47    I will now make orders as to the filing of submissions as to the form the declaratory relief should take.

Associate:

Dated:    20 December 2010