2023 WAIRC 00768
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2023 WAIRC 00768

CORAM
: INDUSTRIAL MAGISTRATE E. O'DONNELL

HEARD
:
WEDNESDAY, 8 FEBRUARY 2023

DELIVERED : WEDNESDAY, 20 SEPTEMBER 2023

FILE NO. : M 54 OF 2022

BETWEEN
:
CARL ASHLEY PARKER
CLAIMANT

AND

SWAN TRANSIT SERVICES PTY LTD
RESPONDENT

CatchWords : INDUSTRIAL LAW – Fair Work Act – Interpretation of industrial agreement – Spread shift – Duration of spread break – applicability of agreement to part-time employees
Legislation : Fair Work Act 2009 (Cth)
Instrument : Swan Transit Enterprise Agreement 2017
Case(s) referred
to in reasons: : Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005
Carl Ashley Parker v Swan Transit Services (South) Pty Limited [2022] FWC 274
Result : Contravention proven; no entitlement to payment from any such contravention.
REPRESENTATION:

CLAIMANT : M A. DZIECIOL (OF COUNSEL) AND MR L. SLANEY (OF COUNSEL)
RESPONDENT : MR S. CLAYER (OF COUNSEL)


REASONS FOR DECISION
Introduction
1 On 27 November 2019, Swan Transit made an offer of permanent part-time employment as a bus driver to Carl Ashely Parker, with employment to commence on 19 January 2020.
2 In accordance with that offer, from 19 January 2020 until 27 March 2022 (the period of employment), Mr Parker worked for Swan Transit as a bus driver on a permanent part-time basis.
3 At all times during the period of employment, the Swan Transit Enterprise Agreement 2017 (the Agreement) applied to Mr Parker’s employment.
4 It is not in dispute that during the period of employment, Swan Transit was a national system employer, and that the Agreement was an enterprise agreement approved pursuant to s 185 of the Fair Work Act 2009 (Cth) (FWA).
5 It follows that any contravention of the Agreement would constitute a contravention of s 50 of the FWA and might attract a penalty pursuant to s 539 of the FWA.
I The claim
6 Sub-clauses 7.6, 7.7, 7.8, 7.18 and 7.19 of the Agreement refer to “spread shifts”.
7 The term “spread shift” is not defined in the Agreement.
8 However, it is apparent from the evidence (both written and oral) submitted during the case that a “spread shift” is a shift worked in two parts, with an unpaid break known as a “spread break” in between the two parts.
9 Throughout the period of employment, Mr Parker was regularly rostered to work spread shifts.
10 Sub-clause 7.18 of the Agreement provides as follows:
The break in a spread shift shall be between 91 minutes and 5 hours.
11 It is not in dispute that on most, if not all, occasions when Mr Parker was rostered to work a spread shift, the break between the two parts of his shift was greater than 5 hours.
12 Mr Parker claims that Swan Transit contravened sub-cl 7.18 of the Agreement on every occasion it rostered him in such a way that his spread break was greater than 5 hours.
13 By way of remedy, Mr Parker asks the Court to impose a penalty upon Swan Transit for its contravention of the Agreement, pursuant to s 539 of the FWA.
14 As originally pleaded, Mr Parker’s claim also encompassed a claim for unpaid wages on the basis that every time his spread break exceeded 5 hours, he was entitled to be paid overtime wages for the duration of the break beyond the 5-hour mark.
15 However, at the close of evidence at the trial, the claim for unpaid wages was withdrawn, so that no claim for overtime wages, or any other type of unpaid wages, is now pursued (ts 33).
16 Swan Transit denies the claim and contends that sub-cl 7.18 applied only to full-time employees and had no application to part-time employees.
17 For the reasons that follow, I find the contravention proven.
II Did sub-clause 7.18 of the Agreement apply to part-time drivers?
18 Swan Transit submits that sub-cl 7.18 had no application to part-time employees. It makes that submission on two bases.
(i) The context of sub-clause 7.18
19 The first argument Swan Transit makes is based on the location of sub-cl 7.18 in the Agreement.
20 Sub-clause 7.18 appears in clause 7 of the Agreement, which is entitled “Hours of Employment”.
21 The first sub-clause under that heading, sub-cl 7.1, provides:
The ordinary hours of work for a full-time Employee shall not exceed 38 hours per week excluding meal breaks and will be rostered Monday to Friday. Work on Saturdays, Sundays and Public Holidays shall be rostered overtime.
22 Swan Transit seizes upon sub-cl 7.1 to advance the argument that cl 7, and consequently sub-cl 7.18, must apply only to full-time employees. To fortify that submission, Swan Transit notes that cl 8 of the Agreement is entitled “Part-Time Employment” - meaning, it submits, that cl 8 encompasses the terms applicable to part-time employees, while “the rights and entitlements contained in clause 7 applied to full-time drivers”. Respondent’s submissions, [32].

23 I am not persuaded by this aspect of Swan Transit’s argument.
24 As noted above, cl 7 of the Agreement is entitled “Hours of Employment”.
25 While sub-cl 7.1, immediately following that heading, pertains to the hours of work for a full-time employee, it does not follow that the remainder of cl 7 applies only to full-time employees.
26 Clause 7 contains 32 sub-clauses and is divided into the following sub-headings:
a. Daily Shifts
b. Meal, Rest and Crib Breaks
c. Weekly Rosters.
27 By contrast, cl 8 contains a total of nine sub-clauses and no sub-headings. It is limited to the subject of hours to be worked, rates of pay and how overtime applies to part-time employees.
28 As a matter of common sense, the sub-clauses of clause 7 must, prima facie, apply to part-time employees. If they did not, part-time employees would be deprived of significant entitlements under the Agreement pertaining to topics including, but not limited to, meal and rest breaks.
29 In fact, some of the evidence led in the case, to which I will now refer, illustrates the point that cl 7 must be applicable to part-time employees.
30 Sub-clause 7.32 provides:
Exchange of work:
(a) An Employee may exchange work with other Employees for their personal convenience, provided such change is with the consent of the Employer.
(b) Where a request is made before 5:00pm on the Friday 10 days before the roster commences a response shall be provided by 5:00pm on the Wednesday following the request.
(c) Rostered hours shall be calculated on the basis of the work performed.
(d) The Employee who accepts the shift so exchanged shall be responsible for completing that shift.
31 Swan Transit’s case included uncontested evidence by way of affidavit from Sharif Hossain and Mark Edward Dickson. Mr Hossain and Mr Dickson both state that Mr Parker would often swap shifts with others. Exhibit 4, [4] – [5]; Exhibit 5, [7].
Mr Hossain states that in his role as Depot Coordinator of the Joondalup depot, he would regularly process shift swap forms from Mr Parker. Exhibit 4, [5].

32 I find on the balance of probabilities that these shift swaps were facilitated in accordance with sub-cl 7.32, and that this is an example of the direct application of a sub-clause within cl 7 having direct application to a part-time employee.
(ii) Is there any evidence that displaces the prima facie application of sub-clause 7.18 to part-time employees?
33 The second, more nuanced argument Swan Transit makes effectively seeks to go behind the prima facie meaning and application of sub-cl 7.18. That argument is to the effect that the parties to the Agreement, including the Transport Workers’ Union, always understood that sub-cl 7.18 had no application to part-time employees.
34 This is essentially the same argument as was made by Swan Transit in the s 739 FWA dispute resolution proceedings before Deputy President Beaumont of the Fair Work Commission (FWC). In her decision following those proceedings, Carl Ashley Parker v Swan Transit Services (South) Pty Limited [2022] FWC 274.
Deputy President Beaumont expressed the opinion that sub-cl 7.18 of the Agreement did apply to part-time employees.
35 The Deputy President’s opinion on the issue is not binding upon me, but it is persuasive.
36 The evidence led before me by Swan Transit, particularly through Swan Transit’s Managing Director Brian Thompson, explained in detail why it would not have been practical to ensure that part-time drivers never had spread breaks longer than 5 hours.
37 That evidence was characterised by an attractive logic, and I accept, based on that evidence, that if Swan Transit had adhered strictly to the terms of sub-cl 7.18 in rostering its part-time drivers, all drivers would have been negatively affected (ts 25; 27).
38 Consequently, based on the industrial implications of rostering part-time employees strictly in accordance with sub-cl 7.18, I am prepared to accept that there was an ambiguity as to whether sub-cl 7.18 could or did have application to Swan Transit’s part-time employees.
39 As noted by Deputy President Beaumont, Ibid., [83].
where there is an ambiguity in the interpretation of a provision of an industrial instrument:
The following principles from Berri( Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005.
) assist with resolving the question of whether there are any objective facts that would assist in the task of interpretation:
The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
…
If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process…
Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
……post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding [3], [10 - 15].
40 Swan Transit submits that on consideration of evidence of the objective background facts which were known to the parties, and which inform the subject matter of the Agreement, it is clear that the parties never intended sub-cl 7.18 to apply to part-time drivers.
41 The problem Swan Transit has in this respect is a lack of evidence as to precisely what was discussed in the bargaining of the Agreement.
42 Under cross-examination by counsel for the claimant, Mr Thompson conceded (ts 25-26) that:
a. he could not confirm whether the issue of sub-cl 7.18 was discussed in bargaining negotiations in 2005, 2008, 2012, 2016 or 2017;
b. Swan Transit had not produced in evidence before the Court any minutes of those historical bargaining meetings leading up to the formulation of the Agreement.
43 In the absence of evidence of the discussions had between the parties, Swan Transit’s evidence at trial only manages to prove its own subjective intentions as to the operation of sub-cl 7.18. It falls well short of establishing either:
a. notorious facts of which knowledge is to be presumed; or
b. evidence of matters in common contemplation and constituting a common assumption.
44 As to post-agreement conduct, the fact that Swan Transit rostered its part-time employees on spread shifts with breaks greater than 5 hours is only evidence of its subjective approach to the Agreement; and the lack of any complaint about that practice until Mr Parker made his complaint is, as Berri makes clear, insufficient to establish a common understanding.
45 The evidence led before me does not significantly differ from the evidence led before the FWC; consequently, I echo the observation of Deputy President Beaumont that the evidence does not support a finding that “the operation of subclause 7.18 was a notorious fact of which knowledge is to be presumed or its limitation to full-time employees was in common contemplation and constituted a common assumption.” Carl Ashley Parker v Swan Transit Services (South) Pty Limited [2022] FWC 274, [104].

III Findings
46 For the same reasons as those outlined by the learned Deputy President in the FWC proceedings, I find that sub-cl 7.18 of the Agreement applied to part-time drivers.
47 On each occasion when Swan Transit rostered Mr Parker to work spread shifts containing spread breaks of greater than 5 hours, it contravened sub-cl 7.18 of the Agreement.
48 However, I am not satisfied that every line of Mr Parker’s spread sheet pertains to a spread shift with a break of greater than 5 hours. This is because there is uncontested evidence from Mr Hossain and Mr Dickson to the effect that Mr Parker regularly requested “straight” shifts. There is also evidence from Mr Thompson that Mr Parker said he was “not overly keen on spreads” (ts 22), which supports the evidence of the other witnesses that on some occasions, Mr Parker swapped his rostering with other drivers in order to work “straight” shifts.
49 On the basis of that evidence and on the balance of probabilities, I find that some of the entries on the spreadsheet pertain to days when Mr Parker had done a swap with another employee and had effectively worked two separate “straight” shifts, contrary to his original roster.
50 It is not possible for me to determine, therefore, on how many occasions Mr Parker worked a spread shift with a break of greater than 5 hours.
51 It does appear, though, that more than 20% of Mr Parker’s total shifts rostered contained a spread break of greater than 4 hours. If so, that would constitute a contravention of sub-cl 7.19 of the Agreement.
52 As to that issue, Deputy President Beaumont said, Ibid., [100].
and I agree:
Swan Transit placed weight on the inclusion of subclause 7.19 through bargaining, which it said addressed spread shifts with a break greater than four hours being limited to 20% of the total spread shifts rostered for full-time drivers. However, no evidence was adduced to support Swan Transit’s proposition that the inclusion of subclause 7.19 was limited in its operation to full-time employees. There was no evidence of prior negotiations regarding subclause 7.19 or evidence to suggest that its operation was in common contemplation.
53 Even after those findings, this claim did not include an assertion that Swan Transit had contravened sub-cl 7.19.
54 The fact that Mr Parker does not claim any contravention of sub-cl 7.19 is telling.
55 Mr Parker gave the following evidence at trial (ts 10):
I have no problems with working and had no problems with working or having a six-hour spread break or a seven-hour spread break or an eight-hour spread break. The EBA and the basis of that is that a spread break is unpaid. As far as my interpretation goes of the EBA, the maximum unpaid spread break is five hours. If Swan wish to roster me for a six-hour spread break or a seven-hour spread break or an eight-hour spread break, I don't have a problem with that. The requirement is that anything over five hours is paid.
56 There is nothing in the Agreement to support Mr Parker’s assertion that “anything over five hours is paid”. Swan Transit’s submissions on that point are entirely correct, and that point was correctly conceded, and that aspect of the claim withdrawn, at the close of the case (ts 33-34).
57 Secondly, that evidence, in conjunction with the lack of any claim of contravention of sub-cl 7.19, leads me to the view that Mr Parker experienced no inconvenience whatsoever because of the rostering of spread breaks longer than 5 hours.
IV Orders
58 The claim is allowed, to the extent that:
(a) Swan Transit contravened sub-cl 7.18 of the Agreement by rostering Mr Parker to work spread shifts with a spread break greater than 5 hours; but
(b) Swan Transit is not liable to pay any additional wages to Mr Parker as a result of that contravention.
59 I will hear submissions as to penalty in due course.