Federal Court of Australia

Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 39

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth), this proceeding be transferred from the New South Wales Registry to the Tasmania Registry.

AND THE COURT DECLARES THAT:

2.    The TasWater General Employees (North Western Region) Enterprise Agreement 2021 does not entitle employees covered by that agreement and engaged as Shift Workers to the benefit of cl 27.4 of the Water Industry Award 2020.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1    Before the Court is an application brought by the Tasmanian Water & Sewerage Corporation Pty Ltd (TasWater). TasWater provides water and sewerage services for all of Tasmania.

2    In broad terms, a dispute has arisen in relation to the application of cl 27.4 of the Water Industry Award 2020 (Award) to shift workers of TasWater who were covered by the TasWater General Employees (North Western Region) Enterprise Agreement 2021 (2021 Agreement). Clause 27.4 of the Award sets out an entitlement to an additional day’s pay or additional day of leave where a public holiday occurs “on a day on which an employee is rostered off while employed on a 7 day a week rotating roster system” (which I will call the contested entitlement). It is not in dispute that the Award was incorporated into the 2021 Agreement.

3    In July 2024, the somewhat clumsily named respondent, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Union), applied to the Fair Work Commission (FWC) seeking a determination that TasWater’s shift workers are entitled to the benefit of the contested entitlement.

4    By this application, TasWater seeks a declaration that 2021 Agreement does not entitle the shift workers to the benefit of the contested entitlement, and/or that cl 27.4 of the Award only applies where a public holiday falls on a “rostered day off”, where an employee’s ordinary hours are structured to include such a day off. In summary, TasWater contends that the 2021 Agreement and the Award are inconsistent such that the shift worker provisions of the 2021 Agreement are intended to “cover the field” for the purposes of the contested entitlement.

5    I will return to the substantive dispute and the nature of the relief sought by TasWater later in these reasons. It is convenient first to sketch some further background to the proceeding.

B    BACKGROUND

6    In order to limit the scope of the evidence, I required the legal representatives for both parties to attempt to agree upon all relevant non-contentious facts prior to preparing evidence that would be the subject of dispute. A statement of agreed facts was prepared (agreed facts), and a final version was provided to the Court and admitted into evidence with each fact being an “agreed fact” within the meaning of s 191 of the Evidence Act 1995 (Cth).

7    The factual findings that follow are made upon an admixture of the agreed facts and material drawn from contemporaneous documents. Two affidavits were read without objection, but this evidence was adduced somewhat sheepishly, conscious of the reality the evidence was almost entirely irrelevant (and ended up not being referred to in final address).

B.1    The Parties

8    TasWater is incorporated and a national system employer for the purposes of the Fair Work Act 2009 (Cth) (FW Act). TasWater commenced operations in 2013.

9    TasWater currently engages approximately 12 employees as shift workers in accordance with the 2021 Agreement (which I will call the relevant workers).

10    At present, none of the relevant workers receive the contested entitlement.

11    TasWater also engages nine employees as shift workers covered by the TasWater General Employees (Southern Region) Enterprise Agreement 2021.

12    All of the shift workers perform work at TasWater’s operations centre located in Devonport. The operations centre operates 24 hours per day, seven days per week.

13    The shift workers provide computer-based support to TasWater’s field teams. This includes duties such as:

(1)    analysing what is happening across the network and passing relevant information on to employees out in the field;

(2)    helping to co-ordinate TasWater’s response to issues across the water and sewerage infrastructure; and

(3)    assisting in responding to alerts or alarms that go off across the network, escalating those alerts or alarms as required and calling out field staff who can deal with the issue if needed.

14    The shift workers are office-based and do not perform any duties in the field.

15    Rostering for the shift workers is arranged on a “4 on, 4 off” rotating roster pattern, with the shift workers rostered:

(1)    to work for two-day shifts, followed by two-night shifts, and then four days off; and

(2)    across seven days per week.

16    The rostering pattern, including the shift workers’ non-working days, is a fixed pattern, which TasWater may adjust.

17    Each of the shift workers are on an annualised salary arrangement in accordance with cl 3 to Sch 4 of the 2021 Agreement.

18    The Union is an employee organisation for the purposes of the FW Act and is covered by the TasWater General Employees (North Western Region) Enterprise Agreement 2024.

B.2    The Dispute

19    On 13 January 2024, Mr Joshua Nash, a shift worker employed by TasWater, sought clarification from TasWater as to the application of cl 27.4 of the Award to shift workers.

20    About two weeks later, Ms Dianne Badcock, Employee Relations Lead at TasWater, responded to Mr Nash and advised him that TasWater’s contention was that the contested entitlement did not apply to the shift workers.

21    On 18 April, Mr Nash notified TasWater of a dispute in relation to his concerns about the contested entitlement, in accordance with the dispute settlement procedure set out at cl 63 of the 2021 Agreement.

22    On 5 July, the Union applied to the FWC to deal with a dispute in accordance with the dispute settlement procedure pursuant to s 739 of the FW Act. The relief sought by the Union in that proceeding is that the shift workers are entitled to the benefit of the contested entitlement.

23    On 29 July, the parties attended a conciliation conference in relation to the FWC proceeding, which, obviously enough, was unsuccessful.

C    THE RELEVANT LAW

24    This is not the forum for an excursus on the proper approach to construing industrial instruments, but as I said to the parties at the first case management hearing, this is an area of the law which, in my view, is sometimes overcomplicated.

25    It is trite that there are differences between industrial instruments and commercial contracts. As a starting point, the legal efficacy of the terms of an industrial instrument arises under statute, not the law of contract, and, in contrast to a commercial agreement, will be felt by those who did not agree to its terms: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; (2020) 275 FCR 385 (at 397–398 [50] per Flick, White and Perry JJ). The sui generis nature of industrial instruments has generated some discussion in the authorities as to the heightened relevance of context in the construction exercise; including, among other things, that industrial instruments are to be interpreted in the light of the customs and working conditions of the relevant industry and are to be construed as “practical” instruments that will apply to the working conditions known to employers and employees: WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 (at 580 [197] per Tracey, Bromberg and Rangiah JJ); James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 (at 580–581 [65] per Griffiths and Sarah C Derrington JJ).

26    Although expressed in a different way, as a matter of principle, none of these observations jar with the general way in which one approaches the task of construing a commercial contract. The starting point is the ordinary meaning of the words read as a whole, understood in the light of the instrument’s context and purpose: WorkPac v Skene (at 580 [197]); Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 (at 242 [2] per Gleeson CJ and McHugh J). And, to the extent that there are true, mutually known facts to the parties, provided those facts rise to the level of matters that would be (to use an old-fashioned word) “notorious” to those intended to be bound by the instrument, those facts may inform the construction exercise.

27    Put another way, the fact that one is engaged in the exercise of construing the provisions of an industrial instrument simpliciter does not mean that one is engaged in some sort of arcane exercise; nor is there any suggestion in the authorities that when construing such an instrument, one is engaged in a process of seeking to divine the subjective intentions of those intended to be bound by its terms. As Tracey J said in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54 (at 59 [34]–[35]):

[34]     Guidance as to the construction of industrial instruments may also be obtained by reference to principles which courts apply to the construction of commercial contracts. Commercial contracts should, as Kirby J held in Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 170 ALR 579; [2000] HCA 20 at [24] “be construed practically, so as to give effect to their presumed commercial purposes and so as not to defeat the achievement of such purposes by an excessively narrow and artificially restricted construction”. An interpretation which accords with business common sense will be preferred to one which does not: see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437.

[35]     In determining whether a commercial document imposes contractual obligations regard is had to the intention of the parties: would a reasonable person conclude that the person making the alleged binding promise intend to be contractually bound by that promise. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; 211 ALR 342; [2004] HCA 52 at [40] the High Court summarised the position as follows:

[40] … It is not the subjective beliefs or understanding of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe … That, normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.

28    These preliminary observations aside, it is useful to extract seven presently-applicable principles to the interpretation of industrial instruments summarised in James Cook University v Ridd (at 580–581 [65]):

(i)     The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [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 Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [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] FCA 813; 153 IR 426 [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] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 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] FCA 51; 40 FCR 511, 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] FCA 51; 40 FCR 511, 518).

(vi)     A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [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] FCA 553; 30 IR 362, 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] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

29    It is necessary to say something further about the applicable principles attending the existence of an inconsistency between industrial instruments.

30    In Maribyrnong City Council v Australian Municipal, Administrative, Clerical and Services Union [2019] FCA 773; (2019) 369 ALR 704, Wheelahan J considered whether an inconsistency arose between specifically bargained provisions in an enterprise agreement, and an earlier industry award (which was annexed to the enterprise agreement). I will not repeat his Honour’s, with respect, compelling reasoning. It suffices to note that after discussing (at [43]–[53]) the notion of inconsistency in the context of s 109 of the Constitution and in the context of commercial contracts, his Honour concluded (in the specific context of the industrial agreement the subject of that case) that:

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

(Emphasis added)

31    Analogies need to be approached with some care. During argument, I was directed to a decision of the Full Bench of the Fair Work Commission, being Airservices Australia v Crouch [2023] FWCFB 21 (Gostencnik DP, Millhouse DP and Simpson C). In that decision (at [18]–[19]), the Full Bench observed:

[18]     It is not uncommon for enterprise agreements to provide for a hierarchy of provisions rendering some provisions lower in the hierarchy to be of no effect if inconsistent with other identified provisions higher in the hierarchy. Most commonly this is employed to distinguish express terms of an agreement with terms in materials incorporated by reference by assigning precedence to the express terms in the event of, or to the extent of, any inconsistency with an incorporated term. Sometimes, this device is employed to give precedence to one part of an agreement compared to another part. Such is the case here.

[19]     Inconsistency between provisions of an enterprise agreement may be identified in several ways. A provision of an agreement may be directly inconsistent with another provision, for example where there cannot be compliance with both or where a right or benefit is conferred by one provision which the other would take away. Provisions of an enterprise agreement may be inconsistent because, for example, one provision has the effect of altering, impairing or detracting from another or other provisions of the agreement in a way that would create a burden that amounts to inconsistency. Provisions may be inconsistent if one operates in a way that is repugnant to another. Indirect inconsistency might arise when a provision of an agreement so comprehensively deals with a subject matter that on its proper construction it leaves no room for the operation of other provisions touching the subject matter. In this sense, the first mentioned agreement provision is said to “cover the field” in relation to the subject matter.

32    Although these useful observations have merit in highlighting that inconsistency can arise in various ways, the deployment of expressions such as “cover the field” can create some confusion. As is well known, the articulation of this test for inconsistency in the area of Constitutional discourse was initially formulated by Isaacs J in Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 when his Honour noted that if a competent legislature expressly or impliedly evinces its intention to cover the whole field, “that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field” (at 489).

33    Here we are dealing with two instruments containing text which is to be read together. Where, adopting the words of Wheelahan J, the relevant text in the two instruments cannot be read together sensibly or fairly, then a tension or inconsistency arises which requires resolution. The mode by which that inconsistency is resolved is by reference to the rule chosen by the parties to resolve it, objectively ascertained from the text of the instruments and in the light of their context and purpose. One is in danger of comparing apples and oranges to import notions of inconsistency from Constitutional discourse (where one is involved in a process of interpretation involving understanding and balancing the legislative intentions of distinct polities as part of one federal system) to the present process, where one is engaged in a process of divining the objective meaning of an agreement in the light of industrial realities.

C.1    The 2021 Agreement

34    The 2021 Agreement is divided into 10 parts and contains 66 clauses and four schedules.

35    Clause 4 of the 2021 Agreement is entitled “Definitions” and relevantly defines the following:

(a)     Employee means “a person employed by TasWater in a position classified in accordance with Schedule 1 (Classification Structure) of this Agreement, and excludes those Employees referred to in clause 2(b)”;

(b)     Shift Workers are defined as “shiftworkers for the purposes of the NES and means an Employee who:

(i)     Regularly works Ordinary Hours of Work in accordance with a roster cycle, on any of the 7 days of the week; or,

(ii)     Is regularly rostered to work ordinary hours on Sundays and Public Holidays; but does not include:

A.     Employees who work Ordinary Hours of Work on a Monday to Friday basis and undertake regular rostered overtime on weekends; or

B.     Employees who are rostered On-Call in accordance with clause 42 (On-Call Allowance).”

(c)     Span of Hours means “6.00am to 6.00 pm, Monday to Friday for Employees other than Shift Workers. The Span of Hours of a Shift Worker means 6.00am to 6.00pm, Monday to Sunday.”

36    Importantly, cl 5 is headed “Relationship to Other Industrial Agreements” and provides:

(a)     This Agreement provides the minimum terms, conditions and entitlements of the Parties.

(b)     This Agreement is read in conjunction with the Award.

(c)     Where this Agreement and the Award conflict, this Agreement prevails to the extent of any inconsistency.

(d)     Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

(e)     This Agreement wholly replaces the TasWater General Employees (Northern Region) Enterprise Agreement 2018.

37    Clause 23 is entitled “Shift Work” and provides:

“Shift Work requirements and entitlements are set out at Schedule 4 – Provisions Specific to the North Western Region of this Agreement.”

38    Part 7 of the 2021 Agreement is entitled “Leave Entitlements” and contains a number of clauses providing for annual leave, personal/carer’s leave, unpaid carer’s leave, compassionate leave, notice and evidence requirements, community service leave, defence force leave, long service leave, parental leave, family violence support and leave, public holidays, study leave, leave without pay, purchased leave, phased-in retirement, legal and indemnity costs.

39    Clause 57 is headed “Public Holidays” and provides:

(1)    at cl 57(b): “An Employee is entitled to be absent from work on a day or part-day that is a public holiday in the Employee’s ordinary work location”;

(2)    at cl 57.1(a): “Employees, other than Casual Employees, who but for a public holiday would be rostered to work on a day that is a public holiday shall receive payment for a prescribed public holiday equivalent to the Ordinary Hours of Work that would have been worked had it not been a public holiday paid at the Employee’s Ordinary Rate of Pay”; and

(3)    at cl 57.3(a): “An Employee who works Ordinary Hours of Work on a public holiday will be paid Ordinary Rates of Pay plus a penalty of 150% (a total of 250%)”.

40    Schedule 4 is entitled “Provisions Specific to the North Western Region”. Clause 1 of the schedule is headed “Shift Work” and provides for general provisions, appointment to shift work arrangement, penalty rates, shift rosters, roster change – consultation, rest/meal breaks, overtime, and public holidays. Clause 1.8, which deals with overtime on public holidays, provides:

(a)     Where a Shift Worker works the major portion of their shift on a public holiday the Shift Worker shall be paid at double time (200%) at the Shift Worker’s Base Rate of Pay for hours worked on the public holiday. The Shift Worker shall receive no other penalty payment or overtime payment for work undertaken on a public holiday in accordance with the Shift Worker’s shift roster. The Shift Worker is not entitled to additional leave in lieu of rostered shift work undertaken on a public holiday.

(b)     Overtime worked by a Shift Worker on a public holiday is paid at the rate of double time (200%). Overtime payments are paid based on the Shift Worker’s Base Rate of Pay and do not include any Shift Work related or other penalty rate.

C.2    The Award

41    Clause 2 of the Award is headed “Definitions” and defines “shiftworker” to mean:

an employee who works a roster cycle where ordinary hours are rostered outside the span of hours specified in clause 13.2(b) (save that for the purposes of the NES, shiftworker has the different meaning given in clause 22.2)

42    Part 3 of the Award deals with “Ordinary hours of work and rostering”.

43    Clause 13.2(b) provides that “Ordinary hours will be worked within the span of 6.00 am to 6.00 pm Monday to Friday”. Clause 13.2(d)(i) provides that “An employee may work up to a maximum of 10 ordinary hours on any day (excluding unpaid meal breaks)”.

44    Part 5 of the Award deals with “Overtime, shiftwork and Penalty Rates”. Clause 21 is entitled “Shiftwork” and provides in relation to shift workers:

(1)    at cl 21.2, that a roster is to be posted in an obvious place, accessible or made available electronically to employees concerned;

(2)    at cl 21.3(b), that shifts must not exceed 10 hours in length;

(3)    at cl 21.5(a), that where an employer changes the structure of a roster, employees will be given at least four weeks’ notice of the change; and

(4)    at cl 21.10, for shiftwork penalties that apply only to those employed as a shift worker and work according to a pre-determined roster or working pattern which provides coverage for more than one shift per day and beyond the span of hours in cl 13.2(b).

45    Clause 22 of the Award is entitled “Annual leave” and contains the following definition of shift workers for the purpose of the National Employment Standards (NES):

For the purpose of the NES, a shiftworker is an employee:

(a)     who works a roster and who, over the roster cycle, may be rostered to work ordinary shifts on any of the 7 days of the week; and

(b)     who is regularly rostered to work on Sundays and public holidays.

46    Importantly, cl 27 of the Award is entitled “Public Holidays”. It provides:

27.1     Public holidays are provided for in the NES.

27.2     Notwithstanding any other provision in this award, where an employee is required to work on a public holiday they will be paid 250% of the minimum hourly rate for all hours worked.

27.3     An employer and employee may agree to substitute a public holiday as provided by the NES with an alternative day.

27.4     When a holiday occurs on a day on which an employee is rostered off while employed on a 7 day a week rotating roster system, the employee will be paid a day’s pay at ordinary rates in addition to the ordinary week’s pay. The employer may instead of making such additional payment, grant a day’s leave for each such holiday which may be taken at such time as is agreed between the employer and the employee.

E    THE RELEVANT INCONSISTENCY AND THE PRACTICAL EFFECT OF THE SUBMISSIONS OF THE UNION

47    The relevant inconsistency is said to arise between cl 1.8(a) of Sch 4 of the 2021 Agreement and cl 27.4 of the Award.

48    As noted above, cl 1.8(a) of Sch 4 provides that a shift worker will be paid at double time (200%) for hours worked on a public holiday where they work the major portion of their shift on a public holiday. The words “major portion” constitute a hurdle such that cl 1.8(a) does not apply to all shift workers who work on public holidays: it only applies to those shift workers who work the major portion of their shift on a public holiday. If a shift worker performs work on a public holiday, but that does not form the major portion of their shift, they are not entitled to the benefit of this clause.

49    Clause 27.4 of the Award provides that, where a public holiday occurs on a day on which an employee is rostered off while employed on a seven day a week rotating roster system, the employee will be paid a day’s pay at ordinary rates in addition to the ordinary week’s pay.

50    As TasWater submits, the practical effect of reading the construction as contended for by the Union is as follows.

51    First, to take an example, if one shift worker, Shift Worker A, works on a public holiday, but his work does not form the “major portion” of that shift, they will be worse off than a shift worker who does not do any work at all on a public holiday. Shift Worker A in that case would not have met the requirement to be paid double time for his hours worked on a public holiday, instead receiving ordinary rates for the minor portion of his shift actually worked. This contrasts with another shift worker, Shift Worker B, who does not attend work at all, but would still receive an entire “day’s pay” in addition to his ordinary week’s pay. A helpful example was provided orally by counsel for TasWater, Mr Denton, that a shift worker who commences work at 7pm on Australia Day and concludes work the following day at 7am would be worse off than the shift worker who did not work on Australia Day at all.

52    Secondly, and relatedly, shift workers who work the major portion of their shift on a public holiday will only have the hours they actually work on the public holiday paid at double time. Although it is dependent upon the split and number of hours in any given shift, the shift worker may be barely better off than the shift worker who did not work on a public holiday. To take TasWater’s example, if Shift Worker A works a 10-hour shift, and only five and a half of those hours are on a public holiday, they will be paid for 11 hours’ work on the public holiday. If this is compared to Shift Worker B, who is ordinarily rostered to work a 10-hour shift, and is rostered off on a public holiday, they will receive 10 hours’ pay without having to work at all.

53    Thirdly, under cl 27.4 of the Award, a shift worker who does not work on the public holiday at all, will be paid “a day’s pay at ordinary rates” in addition to the “ordinary week’s pay”. But the 2021 Agreement does not define “a day’s pay”, nor an “ordinary week’s pay”. The 2021 Agreement defines wages on a fortnightly basis (cl 30), and the rates payable are set out either as annual wages or hourly rates (Sch 2). In addition, cl 8(a) of Sch 4 confers a double time entitlement for the “hours” worked by a shift worker on a public holiday, but does not provide an additional payment for the “day”, in contrast to cl 15 of the Award which stipulates a minimum weekly rate.

54    The practical effect of cl 27.4, if it were to apply to shift workers under the 2021 Agreement, would be inconsistent rates of pay for shift workers when a public holiday arises: namely that one cohort of shift workers would be paid by reference to the hours they actually worked at their defined base rate of pay), whereas those who do not work at all will be paid a “day’s pay” to be worked out having regard to an average number of hours over an eight week cycle (cl 1.1(a)).

F    THE SUBMISSIONS OF THE UNION

55    Counsel for the Union, Mr Hamilton, sensibly accepted in oral submissions that the practical effect of reading the relevant provisions of the 2021 Agreement and Award together in the way the Union contends would result in some inconvenience or awkwardness.

56    Notwithstanding that difficulty, the Union fastened upon a textual argument centred on the operation of cl 5 of the 2021 Agreement, which it contends is significant for two reasons.

57    The first is that cl 5(a) provides for the minimum terms, conditions, and entitlements of workers under the agreement and cl 5(b) provides that the agreement is to be “read in conjunction with the Award” (emphasis added) (see above (at [36])). It is said that a plain reading of clauses 5(a) and 5(b) suggests an objective intention to maintain all the terms, conditions and entitlements arising under the Award to the extent they are not dealt with by the 2021 Agreement.

58    The second reason is that whereas cl 5(d) deals with “inconsistency” in the context of the NES, cl 5(c), which provision specifically deals with inconsistencies between the 2021 Agreement and the Award, employs the language “where this agreement and the Award conflict”. The Union contends that this is not an insignificant matter: it is an objective indication the parties intended that the 2021 Agreement would limit the terms, conditions and entitlements in the Award only in the event of a conflict between one provision or more of the 2021 Agreement and the Award. In this regard, the Union draws upon analogies from constitutional law discussed earlier that the deliberate drafting choice of the word “conflict” can be understood as meaning direct inconsistency, namely circumstances where the Award alters, impairs or detracts from the operation of the 2021 Agreement, as opposed to a form of indirect inconsistency or “covering the field”. The Union submits that Maribyrnong may be distinguished in this respect because the parties accepted in that case that the redundancy clauses under consideration were directly inconsistent as the severance benefits in one clause were superior to the other and that the clauses, in effect, could not work in tandem. It is said that this type of inconsistency does not arise in this case.

59    For these reasons, the Union submits that properly understood, cl 5 provides a complete answer to TasWater’s case and that no relevant inconsistency arises. The Union, however, highlights the following additional matters which it contends indicate that the 2021 Agreement was not intended to “cover the field” for the purposes of the contested entitlement.

60    First, Sch 4 of the 2021 Agreement is entitled “Provisions Specific to the North Western Region”. Contrary to TasWater’s submissions, it is said that Sch 4 does not constitute a provision which comprehensively covers the entitlements of shift workers: rather, as the heading indicates, Sch 4 sets out entitlements which are specific to employees in the North Western Region.

61    Secondly, and relatedly, contrary to TasWater’s submission that cl 1 of Sch 4 was intended to contain an exhaustive list of entitlements available to shift workers, it is said that other shift worker entitlements appear throughout the 2021 Agreement, including, for example: (1) cl 20(a), which provides that shift workers are to work 38 hours per week averaged over eight consecutive weeks; (2) cl 47.1(a)(ii), which grants shift workers an additional week of annual leave; and (3) cl 48.1(b), which clarifies that a shift worker accrues personal and carer’s leave in accordance with their ordinary hours of work.

62    Thirdly, the construction advanced by the Union is said to be consistent with the purpose of provisions such as cl 27.4, which is to enable employees who are shift workers to retain the benefit of a public holiday when they would not otherwise be entitled to such a benefit because of their unique rostering arrangements. The Union referred to CEPU v Australian Postal Corporation [2012] FMCA 998, where Burnett FM was asked to consider a similarly worded clause which provided that a seven-day shift worker who was “rostered off duty on a public holiday” would be granted a day’s leave in lieu of that holiday or paid a day’s pay at ordinary rates. His Honour said of these types of clauses (at [44]) that they address “the evident purpose of the clause, that being to afford compensation for loss suffered by shift workers because a public holiday falls upon a day when the shift worker is off duty, a loss not suffered by a regular hours employee who enjoys a day’s leave at the employer’s expense”. It is said that there is no industrial reason why an employee who works shift work but is otherwise full-time, should not be entitled to the benefit of a public holiday or compensation for that holiday where they are rostered off at that time, particularly where other full-time employees have the benefit of that holiday. The purpose of those clauses is to ensure that employees who are subject to roster cycles or rotations resulting in them having a day off which coincides with a public holiday do not lose the benefit of the day off (referring to the Shift Workers Case 1972 (1972) AR 633).

63    Fourthly, it is said that to the extent the Court takes into account “extrinsic evidence”, Ms Badcock made a Form 17 statutory declaration in February 2022 with the authority of TasWater, which was filed along with the approval application for the 2021 Agreement. In response to the question “Does the agreement omit any entitlements that the modern award(s) listed in your answer to question 8 provide?” Ms Badcock answered, “No.”. The Union submits that the appropriate inference to be drawn is that as of 18 February 2022, immediately prior to the approval of the 2021 Agreement, TasWater’s position was that the 2021 Agreement did not omit any entitlement in the Award, which necessarily included the contested entitlement.

G    DISPOSITION

64    The submissions of the Union must be rejected.

65    At its heart, this dispute turns upon the meaning of “conflict” in cl 5(c), which the Union contends imports the notion of direct inconsistency from constitutional jurisprudence. But for the reasons explained earlier (at [30]–[33]), analogies drawn from s 109 of the Constitution are inapt in this context. As Wheelahan J recognised in Maribyrnong (at [39]–[40]), we are here concerned with giving a sensible and practical industrial operation to the agreement struck by the parties, shorn of an overly narrow or literal approach.

66    In the light of the practical operation cl 27.4 of the Award and cl 1.8(a) of Sch 4 of the 2021 Agreement, I accept TasWater’s submission that the provisions cannot sensibly or fairly be read together and that the provisions are inconsistent, for the following reasons.

67    First, the 2021 Agreement is, on its face, a comprehensive instrument. As TasWater notes, it provides terms and conditions for the full gamut of the employment relationship, from the probationary period (cl 12) up until the phasing-in of retirement (cl 61). It sets out the hours of work relevant to its enterprise (Pt 4), the remuneration payable to employees (Pt 5), and provides for several different allowances (Pt 6). Notably, it sets out how multiple forms of leave entitlements are treated and paid (Pt 7). Clause 23 of the 2021 Agreement expressly directs shift workers to Sch 4 to see the “requirements and entitlements” that apply to their employment which indicates that the requirements and entitlements that relate to shift work in the North Western Region are to be exhaustively contained in Sch 4. The same drafting technique is used in relation to redundancy (cl 16).

68    Secondly, the first clause of Sch 4 sets out eight sub-clauses that provide for requirements and entitlements that relate specifically to shift work. One of those eight sub-clauses is entitled “public holidays”. Bearing in mind that this is a practical instrument that is not to be approached in a narrow or pedantic way, when reading the text and context of the 2021 Agreement, the structure of the agreement itself is an indication that cl 1.8 of Sch 4 is intended to provide for shift worker entitlements on a public holiday.

69    Thirdly, the 2021 Agreement is not silent on the treatment of public holidays – or how employees are to be paid if they do not work on those days. Clause 57 of the 2021 Agreement contemplates a scenario where an employee will be paid for not working on a public holiday (cl 57.1(a)). Clause 57 of the 2021 Agreement itself is expressed to provide for entitlements for “Employees” of TasWater. As cl 4 defines a “Shift Worker” to be an “Employee”, it is open, on a literal reading, to interpret this clause as also applying to shift workers. This is so as cl 57.1(a) provides an exclusion for “Casual Employees”, but does not make reference to shift workers. However, this would ignore the inclusion of cl 23 of the 2021 Agreement, which evinces an express intention that Sch 4 is to provide for shift worker entitlements.

70    Fourthly, and relatedly, cl 1 of Sch 4 – being provisions that are specific to the North Western Region – is different to cl 57. It provides that eligible shift workers will receive 200% pay for their hours worked (as against the 250% provided for in clause 57.3(a)), and it does not provide for the same or similar entitlement as found in cl 57.1(a) of the EA. This, in my view, suggests that there was a deliberate choice in the 2021 Agreement not to provide an entitlement of the kind found in cl 27.4 of the Award to shift workers in the North Western Region.

71    Fifthly, there are notable differences between Sch 4 of the 2021 Agreement and cl 21 of the Award (which provides for shift work). I accept the submission of TasWater that in order to give the instrument a practical operation, the differences found in the specific schedule are deliberate and ought prevail over the general conditions contained in the Award. As TasWater notes, these differences include:

(1)    cl 1.1(b) of Sch 4 of the 2021 Agreement provides that shift workers may be rostered up to 12.5 hours per day, whereas cl 21.3(b) of the Award provides that a shift must not exceed 10 hours in length;

(2)    cl 1.3 of Sch 4 of the 2021 Agreement provides that penalty rates are paid in addition to each shift worker’s base rate of pay, and includes penalty rates for “continuous shifts”, whereas cl 21.10 of the Award provides that penalty rates only apply when certain conditions are met and does not provide such rates for “continuous shifts”;

(3)    cl 1.4(b) of Sch 4 of the 2021 Agreement provides that each shift roster will be posted “at least one full roster period in advance of the roster commencing” – which, when read with cl 1.1(a), can be a period of up to eight weeks, whereas cl 21.2 of the Award merely requires such a roster to be “made available” to employees but does not say when;

(4)    cl 1.5 of Sch 4 of the 2021 Agreement, that TasWater shall provide affected shift workers with a notice period of “at least one roster cycle of any proposed change to the nature and/or structure of a shift cycle” – which, when read with clause 1.1(a), can be a period of up to eight weeks, whereas cl 21.5(a) of the Award only requires a notice period of at least four weeks;

(5)    cl 1.7 of Sch 4 of the 2021 Agreement provides that that overtime is payable at double time (200%) where a shift worker is directed to perform additional hours of work outside their roster, whereas the Award does not provide for overtime payments to shift workers at all; and

(6)    cl 1 of Sch 4 of the 2021 Agreement does not provide for shift workers who are rostered off on a public holiday receiving payment, whereas cl 27.4 of the Award does.

72    The highwater mark of the careful submissions advanced by Mr Hamilton on behalf of the Union was to draw attention to the difference between the word “conflict” in cl 5(c) and the word “inconsistency”, such that there was, in effect, a gradation of inconsistencies, and it was only when one reached a particular level or direct clash or conflict that it was necessary to resolve the tension between the two provisions.

73    When one looks at cl 5 in the context of the entire agreement, however, I do not find the Union’s argument persuasive. An inconsistency either exists on a fair and sensible reading of the instrument in question or it does not. If such an inconsistency arises, then the parties have chosen the mode by which it is to be resolved: that is, that the 2021 Agreement prevails to the extent of the identified inconsistency.

74    Further, although on no view is it determinative, I do not consider the Form 17 statutory declaration of Ms Badcock is relevant to the construction exercise. If the matters outlined in the statutory declaration were mutually known facts between the parties prior to the 2021 Agreement being struck, then one could legitimately have regard to those matters in the construction exercise. However, as counsel for TasWater highlighted in oral submissions, the statutory declaration was signed by Ms Badcock after the voting process for the 2021 Agreement.

75    For these reasons, it is an industrially sensible and practical reading of the 2021 Agreement to conclude that cl 1 of Sch 4 of the 2021 Agreement was intended to provide for the requirements and entitlements of shift workers (including as to public holidays) to the exclusion of the Award, and that the specific provisions negotiated in Sch 4 should prevail to the general conditions of the Award.

H    CONCLUSION AND A FINAL MATTER

76    Accordingly, I intend to make the declaration sought by TasWater. It would be remiss not to record my appreciation for the parties’ comprehensive and helpful oral and written submissions. These submissions have facilitated the efficient disposition of this application and has allowed me to proceed to deliver reasons immediately. Perhaps these reasons would have been more comprehensive if I had reserved, but given immediately pending long trial commitments, I would have been unable to come to these issues for some time, and thought it best and more consistent with the case management imperatives in Pt VB of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to proceed as I have done. Although these reasons have been given ex tempore, I have had close regard to all the written submissions of the parties and to what counsel has submitted orally today.

77    Finally, this was a case involving a Tasmanian employer, Tasmanian employees, an enterprise agreement struck in Tasmania (being an agreement voted upon and entered into in Tasmania and dealing with work to be performed in Tasmania).

78    Commencing the proceeding in the New South Wales Registry was passing strange. As it happened, when the hearing occurred in Hobart today, several people attended the hearing who would have been likely deprived of the opportunity of doing so if the hearing had occurred at a location remote to the relevant events. If this dispute continues by way of an appeal, any appeal would be conducted most suitably in Tasmania bearing in mind the interests of all the parties and the employees, the ends of justice in the determination of the issues, and the most efficient administration of the Court.

79    Accordingly, before making the declaration, I will make an order under s 48 of the FCA Act for a change of venue.

Associate:

Dated: 6 February 2025