FEDERAL COURT OF AUSTRALIA

Australian Rail, Tram and Bus Industry Union New South Wales Branch v Sydney Trains [2022] FCA 86

ORDERS

THE COURT ORDERS THAT:

1.    Within 14 days or such further time as may be allowed, the parties confer and submit agreed or competing orders for the conduct of the balance of the proceeding, including any further case management hearing, in light of the adjudication in this judgment on the meaning to be given to cl 139.1(h) of the Sydney Trains Enterprise Agreement 2014 and of the Sydney Trains Enterprise Agreement 2018.

2.    There be no order as to costs in relation to this adjudication.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    The applicant, being the New South Wales Branch of the Australian Rail, Tram and Bus Industry Union, by an originating application and statement of claim, alleges the respondent, Sydney Trains, contravened the Fair Work Act 2009 (Cth). This contravention is alleged to have occurred by reason of non-payment of overtime meal allowances to certain employees in contravention of the applicable enterprise agreements, being the Sydney Trains Enterprise Agreement 2014 (2014 EA) and the Sydney Trains Enterprise Agreement 2018 (2018 EA), together the EAs. Sydney Trains denies that any contravention has taken place. The parties have sensibly agreed that:

(a)    a threshold issue upon which liability depends is the correct interpretation to be given to cl 139.1(h) of the 2014 EA and of the 2018 EA, which is in identical terms; and

(b)    the Court should separately determine this liability issue, in the manner of a separate question, albeit not requiring that formal process to be engaged.

2    Clause 139.1(h) in each enterprise agreement provides as follows (emphasis added):

In relation to Employees to whom either the Signal Mechanical, Track, Structures, Resurfacing or Surveying [sc. streams as detailed in Schedule 5C applies/work is assigned], an Employee who is required to work overtime for more than 2 hours will, where it is reasonable to have a meal or meals away from where the Employee would ordinarily have the Employee’s meal, be allowed the sum of the amount as set out at item 17 of Schedule 5B for each meal necessary, unless the meal or meals are supplied free by the Employer. The Employer may grant a crib allowance (to be paid for at ordinary rates) in lieu of a meal break in which case the meal grant shall be the amount as set out at item 17A of Schedule 5B.

3    The Union contends that cl 139.1(h) entitled the categories of workers described in the first two lines of the clause to be paid meal allowances when they worked overtime shifts over two hours duration away from their home depots. Sydney Trains contends that no such entitlement arose. The resolution of this dispute therefore turns on the meaning to be given to the phrases emphasised above, governing the entitlement of that group of employees to a meal allowance, in the context of the rest of the clause, and other identified parts of the EAs.

4    For a relevant employee to be entitled to be paid the meal allowance, on the face of cl 139.1(h) two conditions must be satisfied:

(a)    they must be “required” to work overtime for more than 2 hours; and

(b)    it must be “reasonable” for them to have a meal away from where they would “ordinarily” have that meal.

There is no issue concerning the duration being more than 2 hours.

Key facts

5    Sydney Trains operates and maintains the suburban train network in metropolitan Sydney, and also operates and maintains rail infrastructure beyond metropolitan Sydney to Newcastle, Lithgow, Macarthur and Nowra on behalf of NSW Trainlink. Those combined areas are conveniently described as the Network.

6    Sydney Trains and its employees have been covered by one of the EAs since October 2014. A subset of those employees are known as Infrastructure Workers, and a further subset of them relevant to this proceedings are workers specifically employed to do signal mechanical, track, structures, resurfacing or surveying work, corresponding to the first two lines of cl 139.1(h) reproduced above. The EAs have evolved over time as a number of different industrial instruments have been consolidated and changed, a process that has produced some infelicities in drafting as reflected in cl 139.1(h). The EAs are made up of a number of different parts reflective of this history, two of which are presently relevant:

(a)    Section 1, comprising clauses 1 to 47, which applies to all employees, setting general conditions; and

(b)    Section 5, comprising clauses 133 to 162 and corresponding Schedules 5A to 5E, which only applies to Infrastructure Workers, setting conditions specific to them.

7    The organisational structure of Sydney Trains includes a Network Maintenance division and a Major Works division.

8    The purpose of the Network Maintenance division is to deliver routine maintenance on what is described in the evidence as the “railway civil, signal, electrical and control system assets on the Network”, and to coordinate and deliver infrastructure incident response services across the Network. A subset of the Network Maintenance division is the Network Operations business unit, which carries out most of the routine maintenance on permanent infrastructure, including preventative and corrective maintenance, and incident response work.

9    The Major Works division’s two main functions are to build new rail infrastructure or upgrade existing infrastructure and to carry out heavy maintenance, which involves significant repairs, such as replacement of significant lengths of track.

10    Of the employee categories listed in cl 139.1(h) of “Signal Mechanical, Track, Structures, Resurfacing or Surveying”:

(a)    Network Operations has employees in all but resurfacing and surveying, and

(b)    Major Works has employees in all but structures and surveying.

The employees falling within cl 139.1(h) may be referred to as the relevant Network Operations employees and the relevant Major Works employees, and together as the relevant employees.

11    Clause 42 of the EAs provides that all employees are to be allotted to a location which shall be their home depot. The Network is divided into eight geographic territories, each with a network base, and there is also a satellite base in each of three of the territories. Each employee is allotted to one of the bases as a home depot.

12    Apart from signal mechanical employees, relevant Network Operations employees are required to start and finish work at their home depot, but otherwise perform work at other locations. There are only limited reasons why Network Operations employees would return to their home depots during a shift. These are: to attend a meeting, to attend training, if work was cancelled, or if they happened to be working nearby and this was convenient. This might occasionally mean that an employee was able to have a meal at their home depot. The burden of the evidence is that meals are not usually eaten by Network Operations employees at their home depot.

13    Some 75% of Major Works employees are allotted the Clyde base as their home depot. The rest are allotted a base at either Wollongong or Hamilton. Except when there is no work (which is rare) or there is training, Major Works signal mechanical employees start and finish the workday at their worksite, not their home depot, because this improves signal incident response times in the city. The rest (in resurfacing and track) generally start and finish their shift at their home depot. The burden of the evidence is that meals are not usually eaten by Major Works employees at their home depot.

14    The evidence establishes that very few, if any, of the relevant employees return to their home depots during the course of a working day, including when overtime work is taking place. However, team leaders often spend most of their days at their home depots.

15    From time to time, relevant employees are allocated overtime work at, or start and finish work at, a location other than their home depot (relevantly for more than two hours). This is more commonly by way of standalone overtime shifts that are not contiguous with ordinary working hours (Remote Overtime Shifts), but also less frequently by way of shifts contiguous to ordinary working hours (Remote Shift Extensions). As a practical matter, when this overtime happens, the workers not only do not, but often cannot, return to their home depot for a meal break. That has been especially so since 2013, when Sydney Trains consolidated over 100 depots to 11 depots, making return to any depot often difficult or impossible.

16    There are two types of meal break:

(a)    unpaid meal breaks during which an employee cannot be asked to work; and

(b)    paid meal breaks, known as crib breaks, which are taken as and when the opportunity arises.

17    Since 2013, Network Operations employees have been required to take paid crib breaks when they can during shifts instead of unpaid and uninterrupted meal breaks. Some Major Works employees also take paid crib breaks rather than unpaid meal breaks. This dispute is confined to unpaid meal breaks.

Other relevant provisions of the EAs

18    Clause 139.1 is a clause titled “General” dealing with an aspect of remuneration-related issues. It is desirable to consider cl 139.1(h) in the context of the rest of the clause:

(a)    All overtime, including emergency work, is to be contained with[in] policies in force from time to time, in relation to fatigue management.

(b)    If as a result of working overtime an Employee does not have a continuous break of 8 consecutive hours between finishing the Shift and commencing the next ordinary Shift, a rest period of 8 continuous hours shall be granted without reduction of pay for ordinary hours occurring during such period. Where such a break is not granted, a penalty payment of double-time shall apply to ordinary hours worked during such period.

(c)    Employees who work more than 8 hours overtime finishing immediately prior to or within 4 hours of their ordinary starting time on a Monday:

(i)    shall be granted either 4 hours resting time upon completion of the overtime work and paid for so much of such 4 hours as overlaps with the ordinary commencing time of the Monday Shift; or

(ii)    shall be paid at the rate of time and a half for time worked during the ordinary hours of the Monday Shift and ordinary time for any rest break given during the ordinary hours of that Shift until they have had 4 consecutive hours rest.

(d)    Employees, on day work, who are required to work during their meal break shall be paid overtime for the period of the meal interval actually worked and are to be paid at the rate of time and one half until they are allowed the usual meal intervals or allowed 20 minutes crib break.

(e)    Except where otherwise provided an Employee who works 4 hours overtime after having had the meal break provided in Clause 139.1(i) will be allowed a further meal break of 20 minutes, paid at the same rate of pay received immediately before the commencement of the break, if the Employee is required to continue working.

(f)    In relation to Salaried Employees as defined in Clause 133 (Definitions), an Employee recalled for duty after ceasing work on one Shift, and before commencing work on the next, will be allowed a crib of 20 minutes, paid at the same rate of pay received immediately before the commencement of the break, if the Employee has worked 4 hours overtime and is required to continue at work. If the Employee is required to work more than 4 hours additional overtime after this crib, the Employee will be allowed a further crib of 20 minutes, paid at the same rate of pay received immediately before the commencement of the break.

(g)    Except for Employees to whom either the Signal Mechanical, Track, Structures, Resurfacing, Construction, or Carpentry streams as detailed in Schedule 5C applies, an Employee required to work overtime for more than 2 hours immediately after ordinary finishing time, without being notified the day before that the Employee would be required to work overtime, shall either be supplied with a meal by the Employer or paid the amount as set out at item 17 of Schedule 5B for the first meal and for each subsequent meal. If an Employee after having been notified of the requirement to work overtime has provided a meal or meals and is not required to work the overtime to which the meal or meals relate, payment will still be made for the meals.

(h)    In relation to Employees to whom either the Signal Mechanical, Track, Structures, Resurfacing or Surveying [sc. streams as detailed in Schedule 5C applies/work is assigned], an Employee who is required to work overtime for more than 2 hours will, where it is reasonable to have a meal or meals away from where the Employee would ordinarily have the Employee’s meal, be allowed the sum of the amount as set out at item 17 of Schedule 5B for each meal necessary, unless the meal or meals are supplied free by the Employer. The Employer may grant a crib allowance (to be paid for at ordinary rates) in lieu of a meal break in which case the meal grant shall be the amount as set out at item 17A of Schedule 5B.

(i)    When more than one and a half hours overtime is required to be worked immediately after ordinary working hours, or after what would be the ordinary working hours if the Employee is working on a day the Employee ordinarily has off, before starting to work such overtime the Employee will be allowed a meal break of 20 minutes paid at ordinary rates. The Employer and an Employee may agree to a variation of this provision, provided that the Employer will not be required to make any payment in respect of time allowed in excess of 20 minutes, nor shall the Employer be obliged to make any payment to a tradesperson’s assistant when payment is not made to the tradesman whom the Employee assists.

(j)    Sub-clause 139.1(i) shall not operate to prevent urgent repairs being effected to vehicles or locomotives at places other than workshops, or to equipment to keep a plant operating, nor shall it apply to Employees on the operating staff.

(k)    Sub-clause 139.1(i) shall not apply in any circumstances to IW Worker (Signal Fitting).

(l)    Where an Employee has accepted an offer to work a stand alone overtime Shift, subject to meeting the following criteria, the Employee is entitled to 4 hours payment at the applicable overtime penalty:

(i)    Management has cancelled the work with less than 4 hours notice; and

(ii)    No alternative work for an equivalent Shift can be found.

(m)    Any travelling or waiting time to be paid for shall be at ordinary rates but shall constitute part of the 8 hour break or the 9 hour break as the case may be.

(n)    No Employee shall be booked off to reduce the Employee’s earnings because of having worked overtime on a weekday or on a Sunday which was not rostered, but may be booked off for rest if the interval between the time the Employee ceased working overtime and the Employee’s next ordinary commencing time is less than eight hours.

19    Both parties also place some reliance on cl 144 dealing with the home depot, and cl 145, dealing with travel and incidental expenses, such that it is necessary to reproduce those provisions as well:

144.    HOME DEPOT

When considering any change to an Employee’s current or future home depot, the Employer will not act in a harsh or unreasonable manner. The Employer will use its best endeavours to reduce the total travel time of the Employee from residence to work site. The Employer will not alter Home Depots primarily to reduce travel time or remove travelling and/or any relevant start/finish allowance. In the event that the total travel time increases as a result of any change to current or future home depot and, during consultation an Employee raises a grievance, the Employer will not implement such a change until the dispute settlement procedures have been exhausted.

145.    TRAVELLING AND INCIDENTAL EXPENSES

145.1.     Employees who are required to undertake work temporarily at a location away from their home depot and/or residence, which does not permit them to return to their home depot and/or residence daily, and who incur the expense of overnight accommodation, will be paid expenses based on reasonable and necessary costs incurred at the rates as set out at item 15 of Schedule 5B per day[.]

145.2    Where incomplete days are involved, reimbursement will be calculated on a ‘service entitlement’ basis, at the rate of ‘one (1) quarter of the amount per day’ contained in sub-clause 145.1 for each ‘service entitlement[’] as set out at item 16 of Schedule 5B for which they have incurred expenses where they have been away from the home depot overnight.

145.3.    A service entitlement will be calculated as follows:

Breakfast - Depart home depot before 0700 or return to home depot after 0800.

Lunch - Depart home depot before 1300 or return to home depot after 1400.

Dinner - Depart home depot before 1830 or return to home depot after 1830.

Bed - Depart home depot before 0100 or return to home depot after 0100.

145.4.    Employees utilised on relief duties may have their home depots altered to a depot nearer their residence than their appointed home depot while relieving, but not otherwise.

145.5.    Where an Employee incurs reasonable and actual expenses on a daily basis, supported by actual receipts, in excess of the above amounts, the Employee will be reimbursed by the Employer. Three star accommodation as accredited by the NRMA will be considered reasonable for the purposes of reimbursement. Where reimbursement of actual expense occurs, it will be in substitution for any and all of the above payments.

145.6.    Employees, other than those employed in an infrastructure worker classification (Civil Discipline), who are:

(a)    relieving for holidays for periods of not less than 2 weeks; or

(b)    who are transferred temporarily from their home depot to another place.

and where the transfer or holiday relief necessitates their living temporarily away from their regular place of residence, will be paid an allowance at the rate as set out at item 18 of Schedule 5B per week of 7 days. Existing practices in the making of temporary transfers will not be altered merely in consequence of this provision.

145.7.    Employees required to work overtime for more than 2 hours immediately after ordinary finishing time, without being notified 24 hours before of the requirement to work, will either be supplied with a meal by the Employer or be paid the allowance as specified at item 17 of Schedule 5B for the first and for each subsequent meal occurring every 4 hours thereafter. If not required to work overtime after having been so notified, payment will be as herein prescribed for meals so provided.

145.8.    Salaried Employees when engaged on work for 4 hours or more away from their home depot, to and from which they can travel daily, will be paid as an expense a meal allowance at the rate as set out at item 17 of Schedule 5B for each meal - to be assessed in accordance with the provisions of sub-clause 145.3, provided that:

(a)    No allowance will be payable for the midday meal where an Employee, whose home depot is within a distance of 11.27 kilometres of Central Railway Station Sydney, proceeds to any place which is less than 16.09 kilometres from Central Railway Station Sydney or proceeds to the Car Sheds at Flemington, Mortdale, Hornsby, Railway establishments at Clyde, Enfield, Chullora, Departmental Contractor’s works within 24.14 kilometres of Central Railway Station Sydney or any other place agreed upon between the Employer, the Australian Services Union or the Rail Tram & Bus Union.

(b)    No allowance will be payable for the midday meal where an Employee, whose home depot is within a distance of 11.27 kilometres of Newcastle Railway Station, proceeds to any place which is less than 11.27 kilometres distant from Newcastle Railway Station or any other place agreed upon between the Employer, the Australian Services Union or the Rail, Tram and Bus Union.

(c)    Notwithstanding 145.8(a) and 145.8(b) above, Employees whose depot is located within the boundaries mentioned in clauses 145.8(a) and 145.8(b) will be entitled to claim this allowance providing there are no suitable kitchen/meal facilities readily available at the location where they will be working.

(d)    The distances mentioned in this sub-clause will be computed by the ordinary means of travel.

145.9.    Where it is necessary for an Employee, other than those provided for in sub-clauses 145.8 and sub-clause 145.11 [the words “and sub-clause 145.11” are in the 2014 EA, but not in the 2018 EA], who travels daily when engaged on work away from their home depot to have more than one meal per ordinary Shift away from the home depot, the Employee will be paid the allowance as set out at item 17 of Schedule 5B for each meal in excess of one.

145.10.    Employees who ordinarily return home during their Shift for a meal when working at their home depot and who are notified, after attending for duty at their home depot, that they are required to work at a place which will not permit them to have their meal at their home, as had been arranged by them prior to attending for duty, will be paid a meal allowance as set out at item 17 of Schedule 5B.

145.11.    Employees, employed in an infrastructure worker classification (Civil Discipline), engaged on work away from their home depot to and from which they can travel daily, will be paid a tea money allowance as set out at item 17 of Schedule 5B if their return is later than 2 hours after their normal finishing time and is after 1830. This allowance is not payable to an employee paid a meal allowance for dinner in accordance with clause 145.9. [This last sentence is in the 2018 EA, but not in the 2014 EA.]

145.12.    This clause applies to the exclusion of any other clause in any other document in relation to this subject matter.

Principles in relation to interpreting enterprise agreements

20    The interpretation principles are not in dispute so may be shortly stated. The dispute arises as to their application. WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197] provides a pithy summary of key authority:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on 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 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); 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 (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). 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: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).

21    In Kucks v CSR Ltd [1996] IRCA 141; 66 IR 182 at 184, referred to in the above passage, Madgwick J also observed that a narrow or pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible, and that meanings which avoid inconvenience or injustice may reasonably be strained for. However, his Honour continued by saying that

... 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. 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. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.

22    Further, in James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 per Griffiths and SC Derrington JJ at [72], a suggested reading down of a clause of an EA was rejected upon the basis, inter alia, that it would leave no work for certain words in that clause. This aspect of the conclusion reached was based on the application of the principle that courts should strive to give effect to words that are used. This (and other aspects of the reasoning on this issue) was found to be correct by the High Court in Ridd v James Cook University [2021] HCA 32; 394 ALR 12 at [20] and footnote 16. The High Court also held at [17] in relation to the interpretation of an EA that:

… In that process of interpretation, an important matter of context is the industrial nature of the instrument. Industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests.

23    The footnote to the second sentence reproduced above cited City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 per French J at [57]. In that paragraph of City of Wanneroo, French J quoted an observation by his Honour in a prior judgment that

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.

The competing arguments

24    The Union’s statement of claim alleges that Sydney Trains has, since 14 October 2014, required relevant workers to work Remote Overtime Shifts and Remote Shift Extensions at locations other than their home depots, clearly directed to picking up the terms of cl 139.1(h). Sydney Trains’ defence denies the “required” aspect of this allegation. Instead, Sydney Trains pleads that it had done no more than to request the relevant workers to do such overtime, and that they were able to decline the request. The competing arguments flowing from this may be summarised as follows before turning to the detail:

(a)    as to the first condition in cl 139.1(h) concerning the meaning of “required”:

(i)    the Union contends that “required” relates to the point after which a proposed roster to work overtime has not been sought to be changed, such that each rostered employee is then required to perform the allocated overtime – the Union equates the word with a need or expectation that overtime will be performed once the roster has been finalised;

(ii)    Sydney Trains contends that “required” has no work to do if it is not given its ordinary meaning, which is a form of compulsion, not a mere request that is acceded to, thereby creating an obligation by agreement, rather than anything less than that, such as an expectation or need.

(b)    as to the second condition in cl 139.1(h) concerning “reasonable” and “ordinarily”:

(i)    the Union contends that this requires a degree of objectivity, not a subjective inquiry, and that “meal” in this context should be understood to be a meal break, irrespective of whether a meal is actually consumed;

(ii)    Sydney Trains contends that an assessment of the circumstances of each employee seeking the entitlement is to be carried out, in keeping with the purposes of meal allowances and in keeping with the literal meaning of the words used in the clause.

The first condition: “required” to work overtime

25    The Union’s argument is that while it accepts that Sydney Trains sometimes seeks volunteers for overtime, at least in the first instance, once an employee has accepted an overtime shift and the roster is set, they are then “required” to perform that overtime work. The key evidence relied upon to prove the existence of that compulsion was evidence of an employee, Mr Michael Sullivan, which was admitted for the limited purpose of proving his state of mind that he did not believe he was entitled to decline overtime once he had taken up the offer. There was no objective evidence of any such compulsion, nor any term of the EAs identified that carried such a compulsion. But for present purposes it may be accepted that once an offer has been made and accepted, an obligation to do the overtime that has been agreed to does arise. Thus, the live question is whether the element of overtime being “required” has to be present from the outset, or whether it can arise at the later point in time once the roster has been agreed to by a given employee, ordinarily still well before the work is required to be performed.

26    Another one of the Union’s witnesses, a Sydney Trains Infrastructure Worker, Mr Jonathon Parker, was required for cross-examination. Mr Parker confirmed in cross-examination that he could tell his supervisor that he did not wish to do overtime that had been rostered or offered on a roster, and also confirmed the stance of Mr Sullivan as to understanding that once he had accepted the offer, he considered he had to perform the overtime.

27    This arrangement was also confirmed in the cross-examination of one of Sydney Trains’ witnesses, being the Major Works Associate Director of Project Operations, Mr Dennis Azzopardi, who agreed that:

(a)    Major Works employees are expected to work reasonable levels of overtime;

(b)    Major Works employees work on a four week roster, which is provided five weeks in advance of the roster cycle starting;

(c)    when given a roster with overtime, Major Works employees have a choice to accept the roster as it is, or seek to have it varied, including by changing the allocated overtime shift, with Sydney Trains’ preference being for an overtime swap with another employee to take place;

(d)    Sydney Trains expects its employees to work overtime unless they have a good reason not to, and if an employee accepts their roster without asking for it to be changed, they are required to work it and cannot simply not show up, or depart part way through a shift.

28    Mr Dale Curran, Sydney Trains’ Associate Director of Network Operations, gave evidence in cross-examination in substantially similar terms in relation to overtime rostering arrangements for Network Operations employees.

29    The Union further argues that once an employee has reported for an overtime shift, there was nothing to suggest they could change their mind and leave part way through. The Union therefore submits that a relevant worker who has been asked to work a Remote Overtime Shift or a Remote Shift Extension and has agreed to do so, is “required” to work such overtime within the meaning of cl 139.1(h).

30    Sydney Trains submits that the Union’s argument does not address the terms of cl 139.1(h) and in particular contends that this does not give any work for the word “required”, especially in the context of the rest of cl 139.1, with various of the other paragraphs deploying, or not deploying that word, indicating its intentional use. Sydney Trains points out that courts have avoided interpretations that give words no work to do, citing James Cook University v Ridd in the Full Court at [72], considered above. Sydney Trains submits that had it been intended that the entitlement would attach to merely turning up as rostered and performing overtime work, there would not have been any need to use a word like “required”, calling in aid the definition of “require” in the Macquarie Dictionary as including:

2. to call on authoritatively, order, or enjoin (a person, etc.) to do something: to require an agent to account for money spent.

3. to ask for authoritatively or imperatively; demand.

…

5. to call for or exact as obligatory: the law requires annual income tax returns.

6. to place under an obligation or necessity.

31    Sydney Trains relies upon a contrast with other entitlements listed in cl 139.1(b), (c) and (e), all of which contain no such precondition, but rather give rise to an entitlement upon merely performing the overtime. On this argument, the use of the limiting word “required” must be taken to be intentional and therefore apply when the overtime is mandated by Sydney Trains from the outset. Sydney Trains submits that the plain and ordinary meaning of the word “required” is not consistent with a voluntary act, or the acceptance of an offer which there was no compulsion to accept. Sydney Trains also relies upon unchallenged affidavit evidence from senior managers that when overtime shifts are offered to relevant employees they are able to be, and are in fact from time to time, rejected by relevant employees.

32    There are a number of problems with Sydney Trains’ argument. First, the presence of “required” in cl 139.1(h), while being absent from cl 139.1(b) and (c) but still present in (e), is not as compelling as it might first appear. In each of the latter three paragraphs, the trigger for an entitlement or allowance is a workplace event:

(a)    in the case of cl 139.1(b), in the absence of a continuous break of at least 8 consecutive hours between an overtime shift and the next ordinary shift, either 8 hours rest time must be granted during that subsequent ordinary shift or a double time payment must be made;

(b)    cl 139.1(c) is to like effect to cl 139.1(b), but dealing with a gap 4 hours or less between the end of an overtime shift and an ordinary Monday;

(c)    in the case of cl 139.1(e), once 4 hours of overtime are worked after a meal break, there is an entitlement to a further meal break, noting that the word “required” also appears in relation to continuing to work.

33    In the first two subclauses, the absence of the use of the word “required” is of no moment and does not lend assistance as to what that word means in cl 139.1(h). In the case of the third subclause, the word “required” is not absent but simply appears at the end of the clause rather than at the beginning.

34    Secondly, properly considered, the Union’s argument does not depend upon the word “required” being given no work to do. Despite the roster negotiation stage enabling employees to request changes to overtime including rejecting it, at the point at which a roster has been finalised and both sides agree, there is an obligation on relevant employees to perform that rostered overtime. There is no apparent reason to limit the temporal application of “required” to the point before a roster is agreed, although of course it can apply from the outset when an employee is not given the option to decline, such as to replace a rostered employee who cannot or will not attend to perform overtime, or when insufficient numbers of employees are willing to accept a proposed roster of overtime.

35    Thirdly, if resort is to be had to dictionary definitions, care has to be taken to ensure that the breadth of meaning is not artificially constrained, nor that the words in an EA treated in the manner of a statute. EAs are practical documents, to be given a practical, workable and ordinary day-to-day meaning whenever possible.

36    The sense in which “required” is being used in cl 139.1(h) is to reflect an obligation to perform overtime; or something that arises as a matter of necessity, once a roster has been finalised, both concepts contemplated by the last of the dictionary definitions reproduced above. It is something that Sydney Trains can “authoritatively or imperatively” dictate or “demand” takes place once a roster has been finalised, a meaning contemplated by the second of the dictionary definitions reproduced above.

37    Applying that understanding of cl 139.1(h) to the circumstances established by the evidence, each relevant employee, upon acceptance of a roster, is obliged to perform that rostered overtime. It is something that arises as a matter of necessity to carry out the work. Once the roster has been finalised, Sydney Trains can and does authoritatively or imperatively dictate or demand that rostered overtime is performed. In both a legal and a practical sense, once overtime has been rostered, relevant employees are required to perform it.

38    The conclusion I have reached is that the sense in which “required” is used in cl 139.1(h) is that of being placed under an obligation or necessity, and being subject to any demand by Sydney Trains that the overtime work is performed. Once a relevant employee is required to perform overtime, then there is an entitlement to a meal allowance, but only “where it is reasonable to have a meal or meals away from where the Employee would ordinarily have the Employee’s meal”, to be considered in the next section of these reasons.

The second condition: “reasonable” and “ordinarily” as to location of the meal break

39    The Union’s argument as to it being “reasonable” to have a meal away from where an employee would “ordinarily” have that meal is that this does not require necessity. On this argument, it would suffice if both doing so and not doing so were reasonable options. As to “ordinarily”, the Union argues that cl 139.1(h) cannot be read literally to reflect each individual’s subjective choice because that would make both the operation and the enforcement of the clause uncertain and inconsistent. For example, it is suggested that an employee who prefers not to eat lunch at work could miss out on the entitlement, which the Union argues would be odd because the clause makes no reference to a meal actually being consumed, nor to the time spent at work. I do not find this example compelling in light of what follows.

40    The Union therefore contends that “ordinarily” requires the application of some degree of objectivity, and that the condition is more comfortably read as referring to where the employee would, in the ordinary course of business, be expected to eat their meal, being their home depot. This argument is sought to be supported by reference to surrounding provisions in Part 5 of the EAs, which are said to make the home depot a central concept in relation to employee convenience, including a presumption of being at least the ordinary starting and finishing place. In submitting this, the Union cites:

(a)    cl 139.4(d), providing for an allowance where employees are directed to start and finish at a worksite;

(b)    cl 144, requiring Sydney Trains not to change a home depot in a harsh or unreasonable manner and to endeavour to reduce travel time from residence to work site in allocating home depots; and

(c)    cl 145, providing that work away from the home depot, where the employee cannot return to the home depot, is not the norm but rather is temporary and warrants disability payments, including meal allowances per cl 145.9 to 11.

41    The Union submits that the conclusion to draw from the foregoing considerations is that cl 139.1(h) is concerned with where an employee would presumptively eat their meal, which in the context of the EAs as a whole is their home depot, and which gives the clause a degree of certainty and enforceability that it would otherwise lack. The Union therefore submits that when a relevant employee works away from their home depot to do a Remote Overtime Shift or a Remote Shift Extension over two hours in duration, the clause applies to them and they are entitled to a meal allowance.

42    Sydney Trains’ arguments to the contrary, although detailed, can be succinctly stated and addressed. Sydney Trains first contends that the Union’s argument does not give any work to the phrase “each meal necessary” in cl 139.1(h). That phrase may at first blush appear to be inconsistent with the concept of “reasonable” earlier in cl 139.1(h). However, as Sydney Trains explains, this is coherent when it is understood that this is not a reference to those initial entitlement triggers, but rather to the entitlement only arising when there is a practical need for a meal break having regard to the timing and duration of the overtime work to be performed. In this way, Sydney Trains argues, that phrase is consistent with the purpose of a meal allowance as is evident from the terms of Schedule 5B. That is, so as to compensate an employee for the cost of a meal that would otherwise not have been incurred, provided on an anticipatory basis rather than as a reimbursement of an actual expense. It does not mean that a meal must in fact be consumed.

43    Sydney Trains next contends that the Union’s argument requires a departure from the ordinary meaning of the words used, which has the practical effect of replacing the phrase “where the Employee would ordinarily have the Employee’s meal” with the words “their home depot”. Sydney Trains points to express reference to the home depot having been deployed in cl 145.8 and cl 145.9. The Union’s argument is therefore said to be at odds with the ordinary principles of interpretation referred to earlier in these reasons, because the phrase sought to be read as referring to the home depot has an ordinary meaning, and there is no evidence or other compelling reason to depart from that meaning. On this argument, at most the phrase suffers from a degree of ambiguity, potentially resulting in different outcomes for different employees depending on their subjective circumstances. That will not suffice without an apparent purpose or objective being identified that would justify such an approach, as provided for by cl 2.

44    Instead, Sydney Trains submits, the word “ordinarily” calls for a factual inquiry directed to the evaluation of an individual employee and where that employee would ordinarily have their meal whilst at work, in the Macquarie Dictionary sense of being in the ordinary way, or to the usual extent. That is, Sydney Trains submits that the relevant question is to be directed to where the employee usually eats when at work (which I consider could extend to where they could or would eat, if they chose to have a meal), which may vary, but will not usually be the home depot for the relevant employees. Sydney Trains submits that the Union does no more than assert that there could not have been an intention that cl 139.1(h) confer non-uniform entitlements to employees, citing WorkPac at [198]:

Industrial agreements (such as enterprise agreements) will commonly differentiate between groups of employees covered by the agreement because some terms and conditions provided for by the agreement will be applicable to some groups but not others or, if applicable to all, may provide that different rates or conditions apply to different groups. In those circumstances, an enterprise agreement must assign the employees covered by it into different categories and provide a definition, or identify some other mechanism, for allocating employees into those categories.

45    Sydney Trains submits that enterprise agreements are usually drafted in a manner that accommodates the varied nature of the work performed by the differing groups that are covered and can provide for different entitlements because conditions of work vary between employees. It submits that cl 139.1(h) is just an example of this flexibility, such that it should not be interpreted to have uniform consequences merely because the Union claims it would be fairer and easier if it did. Sydney Trains submits that the Court should not strive for its own sense of what would be fair or just based upon such considerations, but rather give meaning to the terms of cl 139.1(h) having regard to its text, context and purpose. Clause 145.10 indicates that an individual assessment of this kind was in contemplation by the EAs by referring to employees who ordinarily return home during their shift for a meal when working at their home depot, which is difficult to reconcile with the Union’s interpretation of cl 139.1(h). This approach is said by Sydney Trains to be reinforced by the purpose of a meal allowance, which is to cover the cost of buying a meal. This is said to be because:

(a)    relevant employees usually receive several weeks’ notice of the overtime that is allocated; and

(b)    this is enough notice, as it is for ordinary shifts, to ensure that an appropriate meal is available to be consumed at the usual place where a meal is consumed, wherever that may be; whereas

(c)    an employee could reasonably be expected to buy a meal (and therefore an employer expected to cover that cost) in circumstances where they were required to work at location away from where they would ordinarily have a meal.

46    Another point made by Sydney Trains is that the Union’s argument relies upon the relevant employees ordinarily performing work at the allotted home depot and usually having their meals at their home depot, which was not just unsupported by evidence, but contrary to the uncontested evidence adduced by Sydney Trains. The evidence as summarised above is that the relevant employees did not ordinarily perform their substantive work at their home depots, and did not ordinarily have their meals there. Rather, Sydney Trains submits that the evidence it adduced establishes that the purpose of a home depot is to act as an administrative anchor point for employees in the sense that they will usually only be required to work within a set distance from that location, which in turn gives some degree of certainty about where they will work and how long their commute from home will be.

47    Finally, Sydney Trains submits that the Union’s interpretation makes no reference to and therefore gives no weight to the purpose of the meal allowance which is the subject of cl 139.1(h). Sydney Trains directs attention to the objectives of the EAs, including, per cl 2.5, ensuring all employees are treated with trust, dignity and concern for their rights and individual needs. While that is a legitimate characterisation of the Union’s approach, it does not of itself necessarily render the interpretation advanced inherently implausible. It depends on what the “where the Employee would ordinarily have the Employee’s meal” is to be taken to refer to as applied to the present context. That phrase and its meaning must be given effect to, although the express choice made in cl 145.8 and cl 145.9 does tend to tell against the meaning “their home depot” being imputed except when there is a clear and strong basis for doing so.

48    The Union’s argument requires a contorted reading of cl 139.1(h) and must give way to the better reasoning advanced by Sydney Trains. I see no good reason to depart from the ordinary and plain words deployed in cl 139.1(h), however difficult they may be to apply on a day-to-day basis because of the individual factual inquiry that may be required. Those words do not afford support for the presumptive approach urged by the Union. Rather, they support the subjective assessment that the ordinary meaning of those words convey consistently with the purpose of a meal allowance.

Conclusion

49    The Union has not established that cl 139.1(h) is engaged in the circumstances advanced for the purposes of this ruling. Accordingly, there is no legal foundation for the grant of the declaratory relief sought. In those circumstances, it would seem that the Union’s case overall must fail and the originating application must be dismissed unless otherwise abandoned. However, I will not make any formal order to that effect until I have heard from the parties.

Associate:

Dated:    11 February 2022