Federal Court of Australia

Metro Tasmania Pty Ltd v Scatchard [2022] FCA 1223

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made in the Federal Circuit and Family Court of Australia (Division 2) on 7 February 2022 are set aside.

3.    The respondent’s application filed on 28 July 2021 in the Federal Circuit Court of Australia is dismissed.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    The genesis of this appeal is a small claim filed pursuant to the Fair Work Act 2009 (Cth) (the Act) by Mr John Scatchard (the respondent) who is employed as a bus driver in Burnie, Tasmania by Metro Tasmania Pty Ltd (the appellant). In his originating process filed in the Federal Circuit Court of Australia on 28 July 2021 he claimed $1,524.98 for 24 Saturdays worked between 4 October 2015 and 15 March 2020, for which he was paid time and a half when, in his view, he ought to have received payment at the double time rate pursuant to successive enterprise agreements. Registrar Stone dismissed his application on 12 November 2021. On 26 November 2021, he exercised his de novo right of review, which was heard by Judge Taglieri on 2 December 2021. For the reasons published by her Honour on 7 February 2022, the review was upheld and the employer was ordered to pay the amount claimed: Scatchard v Metro Tasmania Pty Ltd [2022] FedCfamC2G 53 (PJ).

2    From those orders, the appellant, on 8 March 2022, appealed to this Court where the appellate jurisdiction is exercised by a single judge: s 25 (1AA) of the Federal Court of Australia Act 1976 (Cth). What is obvious is that this is a test case brought in the name of Mr Scatchard by the Australian Rail, Tram and Bus Industry Union (the Union).

3    With respect to the careful analysis of the primary judge, I have concluded that the appeal must be allowed. Expressed succinctly, her Honour in my view erred in her construction of the central clauses in issue. The respondent was not entitled to be paid double time for Saturdays worked because these were not rostered days off within the meaning of cl 21 of the Metro Tasmania Bus Operators Enterprise Agreement 2013 (the 2013 Agreement) or cl 21 of the Metro Tasmania Bus Operators Enterprise Agreement 2016 (the 2016 Agreement) and collectively the Agreements.

The Agreements

4    The relevant provisions of each agreement are identical, save for cl 21.9 of the 2016 Agreement and the numbering of some of the paragraphs. It was common ground before me that the differences are of no consequence and for that reason I will only refer to the principal clauses in the 2016 Agreement, though I will address the difference in the wording that appears at cl 21.9 of it.

5    The 2016 Agreement was approved by the Fair Work Commission in accordance with s 54 of the Act on 8 December 2015. I set out the relevant clauses. First, there are definitions at cl 4:

DOC means day off cancelled

Day, unless otherwise expressly provided, means a calendar day

Day work means work carried out between 06:00 and 18:00 Monday to Friday

Rostered day off means a day off provided for in a roster

Shift worker means a Bus Operator who is engaged on ordinary rostered work which includes shifts outside the hours defined for day work

Special roster means a roster to provide special services on any day ((outside (sic) of the regular roster for those days)

Spreads are a duty with a break of at least 90 minutes

6    I next set out the relevant operative clauses:

12     FULL TIME BUS OPERATOR

Except in the case of casual employment, all employment shall be by the fortnight. A full-time Bus Operator is a Bus Operator who is engaged to work an average of 38 ordinary hours per week in accordance with rates, overtime rates, terms and conditions listed in Schedule 1 and Schedule 2.

13    PART TIME BUS OPERATOR

A Part Time Bus Operator means a Bus Operator (not being a casual) who works less than full-time hours and has reasonably predictable hours of work and receives on a pro rata basis, equivalent pay and conditions to those full-time Bus Operators who do the same kind of work.

Permanent Part Time Bus Operators will be paid the ordinary rate of pay and all penalty rates applicable to a Full Time Bus Operator in accordance with rates, listed in Schedule 2.

…

19    HOURS OF WORK

The ordinary hours of work shall be 76 per fortnight for all Bus Operators and worked within the following spreads and patterns of hours:

19.1    Day workers

Ordinary hours shall be worked between the hours of 06:00 and 18:00 Monday to Friday, with a minimum of 7 hours and a maximum of 9 hours per shift with not more than 10 rostered shifts per fortnight.

19.2     Shift Bus Operators

19.2.1 Ordinary Hours of work

The ordinary hours of work for shift Bus Operators shall be 76 per fortnight and shall be worked in accordance with a roster as follows:

19.2.2 Bus Operators

Rosters shall be arranged to avoid worked hours extending beyond 9 hours per day on a straight shift and spreads extending beyond 12 hours per day.

19.2.3 Spreads

…

21     SHIFT WORK ROSTERS

21.1.1     Working to a roster

Bus Operators shall work at such times as may be required in accordance with a roster but with the ordinary hours not exceeding the total in a given period as set out in clause 19.

Except as agreed upon by the parties, Bus Operators may be rostered to work day and night shifts on each alternate week.

…

21.1.4     Days rostered off

Bus Operators shall be rostered off duty on 2 clear days in each rostered week and as far as practicable on alternate Sundays.

21.1.5     Notification of rosters, special rosters and alterations to rosters

Special rosters and substantial alterations to existing rosters shall be conveyed to Bus Operators 14 days before they come into operation. The roster once compiled shall not be changed other than for unexpected or unavoidable causes beyond Metro’s control.

…

21.8     Saturday and Sunday work

Shift work on these days shall attract the following penalties:

•    time and a half for all Saturday work, except a shift starting before 1800 on a Friday; and

•    double time for all Sunday work, except a shift starting before 1800 on a Saturday

21.9     Working on a rostered Day off (DOC)

Where a Bus Operator works on a rostered day off (DOC), the actual time worked shall be paid at:

•    Saturday and Sunday or the second portion of any shift – double time;

•    Public holiday – double time and a half;

•    Any other day – time and a half for the first 3 hours and double time thereafter.

…

21.10    Changes to shifts

Where a Bus Operator is required by Metro to change from their normal shift roster and they have been given less than 48 hours’ notice of the change they will receive a penalty payment in addition to their normal salary or wage at overtime rates until 48 hours has elapsed.

…

22     OVERTIME/WORK IN ADDITION TO ORDINARY TIME

Bus Operators must have at least one day off per week

…

22.4     Cancellation of Rostered days off

Wherever practicable, at least 12 hours’ notice of the cancellation of a Rostered day off shall be given. In order to meet unexpected emergencies or unforeseen circumstances, Metro, however, may call upon Bus Operators to work without such notice.

7    The only difference that needs to be noted between the provisions of the 2016 Agreement and those in the 2013 Agreement is that in the earlier agreement cl 21.9 does not include “DOC” in the title or immediately following the words “rostered day off” in the first line.

8    Further, a Memorandum of Understanding dated 12 December 2012 (MOU), records an agreement between the appellant and the Union that:

Metro has reviewed the roster, Saturdays, Burnie Depot, in conjunction with the Rail, Tram & Bus Union. It has been agreed that the roster for Saturdays will be filled on a voluntary basis, utilising the pool of available Bus Operators. Bus Operators will be paid at time and a half, the equivalent cost as the rostered duty; this is not to be classified as a DOC.

9    Ultimately, for the reasons that I explain I do not find the MOU useful in determining the correct interpretation of the provisions of the 2016 Agreement.

The Uncontroversial Facts

10    The undisputed evidence before the primary judge is set out in four affidavits. Two from the operations manager of the appellant, Mr Greg Swain dated 11 October and 2 December 2021, one from the respondent dated 19 November 2021 and one from Mr David Ian Snook (a full time Bus Operator in the employ of the appellant). The primary judge made the following findings of fact:

28     The applicant’s unchallenged evidence is as follows:

•    At [13] – [14] of his affidavit affirmed 19 November 2021:

13.    From June 2008 to February 2021, I worked a five-day roster between Monday and Friday. During this time Saturday and Sundays were displayed on the roster with the words 'OFF' written against my name. Saturday and Sunday's (sic) were my two clear days off each week.

14.    From June 2008 until the end of December 2012, I volunteered to work on a various Saturday shift. When I volunteered to work on a Saturday during this time, I was paid double time (200%) for all hours worked.

•    He and other employees at the Burnie depot were not consulted about and did not agree to the terms of the MOU;

•    After the MOU was created:

Greg Swain, Operations Manager at Burnie Depot posted a document on the noticeboard at the Burnie Depot next to the roster. This document allowed employees to write their name against Saturday shifts that they were willing to work. A new sheet would get posted next to the roster every 6 months for this to occur.

•    From time to time he volunteered for shifts by writing his name on that document against the Saturdays he was willing to work, and this document would remain alongside the current roster on which he was marked ‘OFF;

•    He was only paid at 150% for 24 Saturdays he worked between 4 October 2014 and 15 March 2021;

•    He has tried to get copies of his rosters but has been told by the respondent that they have been destroyed in accordance with the employer’s document retention policy;

•    In September 2020, the employer stopped the voluntary sign up arrangement for Saturdays in Burnie and he was paid pursuant to clause 24.6 of the 2020 EA; and

•    From February 2021, he has worked a seven day roster, a sample of which is annexure JS-5 to his affidavit affirmed 19 November 2021.

29     The evidence of Mr David Snook largely corroborates what the applicant says.  Importantly, that:

30     The evidence of Mr Swain is largely consistent with that of the applicant and Mr Snook about what occurred after the MOU was created until 2020, when the RTBU withdrew from their agreement under the MOU.

31     Mr Swain confirms that for a period in 2020, after the withdrawal from the MOU, they paid employees who worked on Saturdays at 200%. Further, that the normal roster from 2021 provides for Saturday services in Burnie to be covered in the one “normal” rolling roster and samples are provided of that at GS-2 and GS-3 of his affidavit.

46     The unchallenged evidence on behalf of the respondent is that to give practical effect to the MOU, Mr Swain placed a document on the notice board asking for bus operators to express interest about how many and which Saturdays they were willing to work.

(Footnotes omitted.)

11    It is important to explain the annexures to the affidavit of Mr Swain made on 2 December 2021. Exhibit GS-3 is a computer generated spread sheet of paper which is colour coded and is for the six month period from November 2012 until May 2013. It is divided into columns and rows. The first column dates each Saturday within the relevant period. The second records the name of an employee who is a supervisor. The third, fourth and fifth columns record the names of employees who are drivers according to a duty roster which allocates the Saturday work to the drivers. Each row corresponds with and allocates the Saturday work by date entry. Some cells in the spread sheet are marked yellow, which highlights that no driver had been rostered to work. Exhibit GS-4 is in the same format for the period October 2014 to March 2015.

12    A separate spread sheet was prepared for the Monday to Friday roster. An example is exhibited as GS-5. It too is a computer generated spread sheet. It is not colour coded. It is for a 14 day period, commencing 24 October 2021. The first column lists employees by name and each is allocated a separate row. The balance columns record individual days and dates. For some employees Saturday and Sunday is marked “OFF”. For others a start and finish time is recorded for those days.

13    Mr Swain explained the compilation of the roster from December 2012 in his affidavit of 11 October 2021 as follows:

Practical Effects of MOU

9.    Once the MOU was entered into, I created a document to facilitate the agreement in the MOU which was routinely placed on the noticeboard at the Burnie Depot.

10.    This document allowed employees to write in how many Saturdays they were willing to work each month – effectively they were able to express an interest in the Saturday work. For example, some employees would note they are happy to work one Saturday per month, others were happy to work two per month. This document would go up once every 6 months.

11.    I would create a roster for those 6 months for Saturday work scheduling employees who had registered their interest for Saturday work as agreed. That roster was then displayed on the noticeboard next to the Monday to Friday roster which was updated every fortnight in advance.

12.    There were often gaps in weekend roster as I never usually had enough volunteers from the initial ‘expression of interest’ to fill up the roster from the start. Some employees would take the opportunity to fill these gaps by writing their name into the space to indicate they would work that shift. Other times, I would approach employees to ask if they would like to work a shift that I had not covered.

13.    In accordance with the MOU, no employees were forced or directed to work on a Saturday.

14.    If no full-time-time employees were willing to cover the shift, I would roster casuals into the gaps.

Applicant’s Involvement in Arrangement

15.    The Applicant was not involved in the voluntary arrangement for approximately 2 years after it started (i.e. did not work Saturdays) and indicated that he believed Saturdays were precious to him and having to work on Saturdays was disruptive to his life.

16.    However, in mid- to late-2015, the Applicant indicated he had a willingness to work some voluntary Saturday shifts.

17.    I recall the Applicant said he did not want to work a set number of Saturdays per month but, instead, would volunteer for shifts on an ‘ad hoc’ basis as and when it suited him.

18.    Therefore, the Applicant would, on occasion, write his name onto the schedule showing Saturday and Sunday work where there was a gap and he was happy to work a particular shift.

19.    Other times, I would approach the Applicant and say words to the effect of “hey, I’ve got holes for work coming up, can you work any?” He would then indicate which days he was willing to work and I would write his name onto the roster in the relevant spot.

20.    In accordance with the MOU, the Applicant was never forced or directed to work on a Saturday.

(Original Emphasis.)

14    Although the primary judge did not set out this evidence in detail and make corresponding findings of fact based on it, it is plain from the findings that her Honour did make that she must have accepted this evidence.

15    The importance of this evidence is that it establishes as a fact that three documents were created from time to time by the appellant. One, the fortnightly roster. It did not record the respondent as rostered to work on any Saturday or Sunday. Next, what I conveniently refer to as the “volunteer sheet” whereby employees of the appellant would record their willingness to work on a Saturday or a Sunday. And, from the volunteer sheet, there would be prepared the Saturday roster colour coded spreadsheets for each 6 month period.

The Reasoning of the Primary Judge

16    At PJ [45] her Honour considered the meaning of the words “works on a rostered day off (DOC)” in cl 21.9 as “critically important”. That is so. At PJ [45]-[46] her Honour found that the volunteer sheet “is not of itself a separate roster or part of the rolling roster, as it did not allocate particular Bus Operators to work at particular or scheduled dates and times.” In reasoning to that conclusion, the primary judge regarded as instructive the ordinary meaning of roster which Logan J set out in Construction, Forestry, Mining and energy Union v BHP Coal Pty Ltd [2011] FCA 1294 (BHP Coal) at [16]-[18]:

Read in isolation, it is by no means impossible to construe clause 17.3 as admitting of application to starting and finishing times of workers. Why that is so emerges from the ordinary meaning of the word “roster”. As defined in the New Shorter Oxford Dictionary “Roster” materially means “a list or plan showing the rotation of duties and leave for individuals or groups in any organisation originally a military force”. The definition of the word in the Macquarie Dictionary is not materially different, namely “a list of persons or groups with their turns or periods of duty”. In the industrial instrument context in which it appeared in Royal Melbourne Institute of Technology v National Tertiary Education Industry Union (2011) 203 IR 294 at [89] (Royal Melbourne Institute Case), Lander J was of the opinion that the word bore just that ordinary meaning.

It is necessary, though to remind oneself of what Madgwick J observed in Kucks Case as to how words may have different meanings depending on the context in which they are used in particular industrial instruments. That “roster” bore its ordinary meaning in the circumstances of the Royal Melbourne Institute Case is by no means determinative of whether it carries with it in all of its uses in the Agreement here the ordinary meaning of the word. What is clear is that there is no special industrial meaning to give to the word. There was no evidence of any such meaning offered by either party.

The ordinary meaning of the word “roster” is apt to embrace starting and finishing times. One feature of an arrangement which lists terms or periods of duty is the delineation of when a period of duty starts and when a period of duty finishes. That is achieved not just by specifying a particular day, week and month, but also by a time to start and a time to finish on a particular day.

17    Next at PJ [53] the primary judge distinguished between overtime and double time and a half:

In my view, it is apparent from the overall context of the multitude of circumstances provided for in Part 3 of the EA, that there is a distinction between:

(a)     Overtime which occurs because a full-time employee is rostered to work beyond their normal spread of 76 hours of work per fortnight from the outset for the purpose of the rolling or normal roster, and the pay it attracts as overtime; and

(b)    Where outside of or separate to the rostered normal spread of 76 hours per fortnight, a full-time employee subsequently works on a day described in clause 21.9 and is to be paid double time or double time and half.

18    There is an error in this paragraph, although counsel differ in its characterisation. For the appellant, Ms Bulut submits that neither party contended before her Honour that the Saturday work performed by the respondent was overtime and therefore the penalty rates at cl 21.9 do not apply. For the respondent, Mr Reitano submits that her Honour infelicitously refers to “overtime” rather than work on Saturdays which under cl 21.8 what would usually be an overtime rate. Ultimately for the reasons I explain, the error is not dispositive.

19    At PJ [55]-[56] the primary judge rejected the submission that the roster was in two parts:

The respondent urges the Court to accept that the factual situation and the existence of the MOU and that its terms demonstrates that the scheduling of employees by the documents Mr Swain created and displayed, establishes that when the applicant worked on Saturdays, it was because he had been scheduled as part of his normal roster to work and the normal roster was comprised of two documents or two parts. Consequently, clause 21.9 is not engaged.

This seems to me to be an artificial construct and is rejected for a number of reasons:

(1)    The work the applicant did on Saturdays was, on the unchallenged evidence, on days initially marked as “off” on the regular roster. Although it was asserted that the applicant was “on” for Saturdays on both documents, there is no evidence of that before the court.

(2)    The two days that were required to be “off” pursuant to 21.1.4 on the roster applying to the applicant as a full-time employee, became days he in fact worked in the temporal sense used in clause 21.9 as the respondent submits, whether that was by agreement or otherwise;

(3)    On occasions the fortnightly document had gaps and this required Mr Swain to find employees to work within the 14 days’ notice and an amendment of the third document then allocated or assigned who would work on particular Saturdays.

(Footnotes omitted.)

20    The next step in her Honour’s reasoning is the conclusion that the Saturday roster is an alteration of an existing roster at PJ [58]-[59]:

I find that there was a process of varying the normal or rolling roster, which was fluid and not finalised until the employer published the third or amended third document. Logically, I do not accept the contention by the respondent that two documents collectively comprised the normal or rolling roster in this situation. This is particularly so, when the MOU refers to the arrangement in some aspects “standing alone” from the EA and being identified as “the Saturday roster”, which suggests it is separate and distinct from the normal or regular roster.

The evidence in my view establishes what is consistent with alteration of existing rosters as provided for in clause 21.1.5.

(Original Emphasis. Footnotes omitted.)

21    At PJ [70] her Honour emphasised that conclusion:

In my view, the facts in evidence establish that what occurred when the applicant worked on Saturdays comprised of a variation or alteration in his regular roster. The regular roster on the evidence had him marked as “off” on the 24 Saturdays he subsequently worked. As he worked on the 24 Saturdays that were marked as “off” and that were his rostered days off under clause 21.1.4 initially, clause 21.9 is invoked.

22    Finally, and as a further step, her Honour at PJ [64] rejected a submission that “(DOC)” in cl 21.9 operates to confirm that what is meant by the words “works on a rostered day off”:

I also understood the respondent’s submissions to involve the contention that the inclusion of “(DOC)” in clause 21.9 operates to qualify the meaning of “works on a rostered day off” or treat it as if the two terms mean the same. However, that construction is not meritorious when informed by the established principles relating to interpreting industrial Agreements for the following reasons:

(a)    As (DOC) appears in brackets, it more likely connotes an example of when a person is taken to work on a rostered day off, otherwise the clause would simply have been expressed as “where a bus operator has a day off cancelled, the actual time worked etc...”;

(b)    If the clause was intended to operate only for a DOC, it would be unnecessary to refer to rostered day off. The presence of both terms suggests a different meaning and purpose for including them particularly when well established principles of interpretation are applied and to give words used meaning; and

(c)    It would be contrary to logic for the clause to provide that double time is payable when the employer cancels a rostered day off at its instigation but not when an employee agrees to work on a rostered day off to assist the employer’s operational needs.

(Original Emphasis. Footnotes omitted.)

23    In reasoning in that way, the primary judge at PJ [66] rejected the submission that “DOC” is limited to cancellation of a rostered day off at the instigation of the employer.

The Appeal to this Court

24    Whilst it is trite that the appellant must demonstrate legal, factual or discretionary error to succeed, this case turns upon the correct meaning of an industrial agreement in its application to undisputed facts. The meaning of the clauses in issue is a question of law where as Perram J observed in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301; [2018] FCAFC 93 at [45]:

…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.

25    Allsop CJ and Markovic J agreed, in substance, with Perram J.

26    The grounds of appeal provide:

1.    The primary judge erred by:

a.    finding at [47]-[50] and [55]-[56] that the documents constituting the arrangement for the Applicant to work on Saturdays were not part of his regular or rolling roster to work and in doing so failing to take into account:

i.    the terms of the Metro Tasmania Bus Operators Agreement 2013 and Metro Tasmania Bus Operators Agreement 2016 (the Enterprise Agreements) as a whole;

ii.    the industrial context and purpose of the Enterprise Agreements and the customs and working practices in which they operated;

b.    finding at [58]-[59] and [70] of the Primary Judgement that what occurred when the Applicant worked on Saturdays was an alteration or variation of the normal or rolling roster;

c.    finding at [60] of the Primary Judgement that the arrangement under the Memorandum of Understanding required the Respondent to work on a "rostered day off' as that term appears in clause 21.9 of each of the Enterprise Agreements;

d.    finding at [70] of the Primary Judgment that as the Applicant worked on 24 Saturdays which were marked "off' on the regular roster, clause 21.9 of the Enterprise Agreements were invoked;

e.    declaring at [70] that the Appellant had breached clause 21.9 of the Enterprise Agreements; and

   f.    failing to find that:

i.    the Applicant was rostered on to perform the regular roster to work on each of the 24 Saturdays in accordance with clause 21.1.1 of the Enterprise Agreements;

ii.    the Applicant was not "rostered off' on any of the 24 Saturdays within the meaning of clause 21.9 of the Enterprise Agreements;

   iii.    clause 21.9 was not engaged; and

v.    there was no underpayment of penalty rates under clause 21.9 of the Enterprise Agreements.

2.    The primary judge erred by:

a.    finding at [54] of the Primary Judgement that the disposition of the claim was dependant on whether the factual scenario fell within scenario (a) or (b) at [53] of the Primary Judgement; and

b.    failing to find that the arrangements under the Memorandum of Understanding established an agreed process for compiling and conveying a normal or regular roster of work required to be performed on Saturdays in accordance with clause 21.1.1 of the Enterprise Agreements.

3.    The primary judge erred by finding at [64]-[66] of the Primary Judgment that the words "DOC" did not limit the operation of clause 21.9 of the Enterprise Agreements to situations in which the Appellant cancels a "day off' unilaterally.

4.    The primary judge erred by finding at [69] of the Primary Judgment that the subsequent conduct of the Appellant to incorporate Saturday work into the rolling roster was "telling" and in so doing had regard to, and placed weight on, an irrelevant consideration.

27    Despite the number of grounds, counsel for the appellant Ms Bulut in her written case succinctly stated the central error that the appellant asserts:

The single question for the appeal (notwithstanding the four articulated grounds of appeal) is whether the primary judge erred in law in finding that the rostering practice adopted by Metro Tasmania with respect to Saturday work enlivened the operation of clause 21.9 of the two Agreements, in turn requiring Metro Tasmania to pay Mr Scatchard double time (rather than time and a half) for work performed on Saturdays.

28    The essential error that counsel emphasises is that the primary judge erred in that she ought to have construed the reference to a roster in the Agreements as meaning, in this case, a combination of the weekly and weekend roster. Or, expressed slightly differently, as comprising one roster with two components.

29    In contrast, counsel for the respondent Mr Reitano submits that the ordinary meaning of the word roster is a plan or timetable or a document that records when a person is and is not required to work. Accordingly, on the facts, the notation “OFF” in the weekly roster is sufficient to engage the operation of cl 21.9 where, as a fact, Mr Scatchard chose to work on one or more of those days and in accordance with the Saturday roster. Put another way, it is submitted that properly construed the Agreements only contemplate the existence of a single roster, save for the special roster which means by cl 4 a roster to provide special services on any day outside of the regular roster. The basal submission put to me is that “[t]he notion of multiple rosters is not something that is known to the Agreements.”

30    With respect to the learned primary judge, in my view one must read the weekly roster and the Saturday roster together with the consequence that cl 21.9 is only engaged on the facts of this case where an employee is entitled to a rostered day off (as specified on the weekly roster and the Saturday roster), but nonetheless is required to or chooses to work. My reasons for that conclusion may be shortly expressed.

31    The principles that apply to the construction of enterprise Agreements are straightforward and well understood. A convenient summary is set out in the decision of the Full Court in James Cook University v Ridd (2020) 278 FCR 566; [2020] FCAFC 123 at [65], Griffiths and SC Derrington JJ:

The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:

(i)    The starting point is the ordinary meaning of the words, read as a whole and in 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 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]).

32    On appeal to the High Court, Ridd v James Cook University (2021) 95 ALJR 878; [2021] HCA 32, and in the joint reasons at [17], Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ made the obvious point:

…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.

33    The Agreements do not define what is meant by a roster or prescribe its form. I have no hesitation in accepting the submission that a roster must have its ordinary and natural meaning which the primary judge set out at PJ [48] by reference to the decision of Logan J in BHP Coal. However, delving a little deeper into various clauses, what becomes clear is that the Agreements identify components of the content of a roster in a non-prescriptive way.

34    Focusing upon the 2016 agreement, the following clauses are relevant to full time employees. By cl 12 employment is fortnightly and a full-time operator is engaged to work an average of 38 ordinary hours per week. Clause 19 provides that the ordinary hours of work shall be 76 per fortnight and worked within these spreads and patterns of hours identified at subclauses 19.1 – 19.4. Day workers must work ordinary hours between 6 am and 6 pm Monday to Friday with a minimum of 7 hours and a maximum of 9 hours per shift with not more than 10 rostered shifts per fortnight. For shift workers, the ordinary hours of work are 76 per fortnight which “shall be worked in accordance with a roster” which conforms to subclauses 19.2.2 and 19.2.3. Read together these clauses require that rosters “shall be arranged” to avoid working beyond 9 hours per day and with spreads extending beyond 12 hours per day. A shift worker may be called upon to work a spread shift on any day, including Saturday, Sunday or a public holiday. Spreads shall be rostered with a break of at least one hour and 30 minutes and duties on a spread are required to be performed with a minimum of 7 hours and a maximum of 8 hours and 30 minutes.

35    Clause 20 makes it clear that the purpose of a roster is to meet the operational requirements of the employer whilst taking into account the welfare of employees. To that end clause 20.1 makes provision for the parties to examine the rostering practices and procedures to improve working conditions in accordance with the project scope identified at appendix A. Neither counsel suggested that this clause or the appendix assist in the interpretation task.

36    Clause 21, which is limited in its application to shift workers, imposes an obligation: operators shall work at such times as may be required in accordance with a roster, subject to the ordinary hours limit specified at cl 19. Shift workers may be required by roster to work day and night shifts on alternative weeks. By clause 21.1.2 a shift worker must not be called upon to commence a new shift unless he or she has had a break of at least 10 hours. Further, by clause 21.1.3, save for an irrelevant exception, a shift worker shall not be rostered to work more than one shift in each 24-hour period. Next follows clause 21.1.4 which requires that operators “shall be rostered off duty on 2 clear days in each rostered week and as far as practicable on alternate Sundays”. Clause 21.1.5 imposes a limit upon the ability of the employer to create special rosters or to make substantial alterations to an existing roster. In either circumstance notice “shall be conveyed” to an operator 14 days before commencement. Rosters of that character must not be altered “other than for unexpected or unavoidable causes” beyond the applicant’s control.

37    Shift work on a Saturday or a Sunday attracts the penalties that are provided for at clause 21.8: time and a half for Saturday work and double time for Sunday work, save for shifts that commence before 6 pm on a Friday or a Saturday.

38    By clause 21.10 where the employer requires an operator “to change from their normal shift roster” without giving 48 hours’ notice of the change, the operator is entitled to receive a penalty payment in addition to normal salary at overtime rates until 48 hours has elapsed.

39    And finally, there is clause 21.9. In my view the plain meaning of the text of this clause, read in context with each other relevant provision, is that working on a rostered day off means simply working on a day that, in accordance with a roster, the operator would not have worked, either voluntarily or by compulsion. Thus, the central question becomes: what roster did the appellant work to? In my view the straightforward answer is the roster as set out in each of the fortnightly Monday to Friday rosters and the six monthly weekend roster. Those documents must, in my view, be read together. It is quite artificial and strains the language of the Agreements to conclude, as submitted by counsel for the respondent, that the Agreements do not contemplate the existence of more than one roster. The error in that approach is that the Agreements do not require the roster to be in a single document. It is quite logical for the fortnightly week day roster to mark each Saturday, in the case of Mr Scatchard as “OFF” because it is not a Saturday roster.

40    There is a further reason why the respondent’s arguments cannot be accepted. The appellant did not deprive the respondent of an entitlement not to work as rostered. Rather, by choice the respondent decided that he would be rostered to work on the Saturdays that he determined. As a matter of ordinary language this is not working on a rostered day off that is cancelled within the meaning of cl 21.9 read with the definition of “DOC” at cl 4. In the context of the Agreements, to cancel a rostered day off means to take it away and deprive the employee of it. Factually that is not what occurred when the respondent rostered himself to work.

41    That conclusion holds even if the respondent did not initially write his name on the volunteer sheet and only later wrote his name into one or more blank cells on the six monthly weekend roster. The evidence that I have set out is ambiguous on this issue and the primary judge did not make a distinct factual finding about it. However, if that is what occurred then once the respondent made the decision to work on a Saturday by entering his name into a cell, it became his roster to be read in conjunction with the fortnightly roster.

42    For these reasons in my respectful view, the primary judge erred, not as a matter of principle in the approach required to be applied to the interpretation of the Agreements, but rather in her pivotal reasoning at PJ [55]- [56] to the effect that the roster could not be comprised of two documents or two parts which then led her Honour to the erroneous conclusion at PJ [59] that what occurred in this case was an alteration of an existing roster within the meaning of cl 21.1.5, upon publication of the six monthly Saturday roster. In part these errors can be traced to her Honour’s interpretation of the MOU at PJ [58] as contemplating a distinct or “stand alone” Saturday roster. Her Honour with respect erred in employing the MOU to interpret the Agreements in circumstances where the Agreements prevail and are clear in meaning.

Conclusion

43    The appeal succeeds. I make the following orders:

Associate:

Dated:    14 October 2022