2025 WAIRC 00144
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA

CITATION
:
2025 WAIRC 00144



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 19 FEBRUARY 2025



DELIVERED
:
FRIDAY, 7 MARCH 2025



FILE NO.
:
M 60 OF 2024



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





PATRICK STEVEDORES HOLDINGS PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Interpretation of a term of an enterprise agreement – Refusal to grant a scratch day – Determination of the entitlement in clause 5.1 of the enterprise agreement
Legislation : Fair Work Act 2009 (Cth)
Instrument : Patrick Terminals Enterprise Agreement 2022
Case(s) referred
to in reasons: : City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426
Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54
Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182
Amcor Limited v Construction, Forestry, Mining and Energy Union & Ors [2005] HCA 10; (2005) 214 ALR 56
Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 01041; (2025) 105 WAIG 263
Result : Claim dismissed
Representation:
Claimant : Mr K. Sneddon (of counsel)
Respondent : Ms H. Millar (of counsel) as instructed by Seyfarth Shaw Australia


REASONS FOR DECISION
1 On 9 May 2024, the Construction, Forestry and Maritime Employees Union (the claimant) lodged a claim alleging Patrick Stevedores Holdings Pty Ltd (the respondent) refused to allow four employees to scratch a Variable Weekend Allocation (VWA) day where a minimum number of GMP employees Patrick Terminals Enterprise Agreement 2022 (EA 2022) sch 10 defines ‘GMP’ as a full-time employee who is not a G2P or AOR employee.
remained available to work on 6 April 2024, contrary to the requirements of Part B, Schedule 2, cl 5.1 of the Patrick Terminals Enterprise Agreement 2022 (EA 2022) (the Claim).
2 In refusing the four employees’ requests to scratch the VWA day on 6 April 2024, the claimant alleges the respondent has contravened s 50 of the Fair Work Act 2009 (Cth) (FWA).
3 The claimant seeks the payment of a civil penalty to be paid to the claimant.
4 The respondent denies the alleged contravention, opposes the order sought and relies upon the terms of EA 2022 for the making of, and agreement to, requests for scratching.
5 Schedule I of these reasons outlines the jurisdiction, standard of proof and practice and procedure of the Industrial Magistrates Court (IMC or Court).
6 Schedule II of these reasons outlines the principles applicable to the construction of an industrial agreement.
Agreed Facts
7 The respondent is a national system employer for the purposes of the FWA and conducts a business providing stevedoring services, including at the Port of Fremantle (Fremantle Terminal).
8 The claimant has standing to commence the Claim.
9 EA 2022 was approved by the Fair Work Commission on 31 March 2022 and became operative on 7 April 2022 with a nominal expiry date of 31 December 2025. EA 2022 applies to the respondent, the respondent’s employees and to the claimant.
10 Shaun McCorriston, Craig Dew, Richard Hodnett and Alex Christie (collectively the Affected Workers) were employed by the respondent at the Fremantle Terminal as GMP employees, and EA 2022 applied to them.
11 Part B, Schedule 2 of EA 2022 under ‘Trial Fremantle Part B Arrangements’ outlines the rostering arrangements for the Affected Workers and the respondent (Fremantle Trial Schedule).
12 Clause 5.1 of the Fremantle Trial Schedule contains provisions that enable the Affected Workers to request ‘scratch’ days marked ‘V’ (referring to Variable Weekend Allocation or ‘VWA’) in the roster and regulates the circumstances in which they are entitled to do so.
13 To ‘scratch’ is to not be available to work and may occur on certain rostered Saturdays or Sundays where the roster is marked with ‘V’ and where the employee is ordinarily recorded as being available to work.
14 Where an employee has made a request to scratch a day in their roster and this has been accepted, they will not be allocated to work on that day.
15 On 6 April 2024, each of the Affected Workers requested a scratch day which was refused by the respondent. On 6 April 2024, at least 24 GMP employees were available to work.
Other Evidence
Claimant
16 The claimant relied upon a witness statement by Doug Heath (Mr Heath) signed on 9 October 2024 (the Heath Statement). Exhibit 2 – witness statement of Doug Heath dated 9 October 2024.

17 In the Heath Statement, Mr Heath states that he is the Deputy Branch Secretary of the Western Australia Branch of the Maritime Division of the claimant (Maritime Union). Exhibit 2 at [4].
He has worked as an official of the Maritime Union on two occasions, between 2010 and 2015 and from 2018 to the present. Exhibit 2 at [5].

18 Mr Heath states that during the week commencing 8 April 2024, he was contacted by members of the Maritime Union who had been allocated to work on 6 April 2024 after they had requested to scratch their VWA day. Exhibit 2 at [7].

19 On 11 April 2024, Mr Heath sent an email to Brad Morgan (Mr Morgan), Operations Manager for the respondent, seeking a response and an explanation. On 12 April 2024, Mr Heath sent a further email to Mr Morgan informing the respondent the Maritime Union expected compliance with EA 2022 for the ‘upcoming weekend’s rostering arrangements.’ Exhibit 2 at [7]  [9].

20 On 18 April 2024, Mr Heath received an email from Mr Morgan in which he states Mr Morgan ‘conceded that an error had been made with the VWA allocation on 6 April 2024 and that this error was the result of miscalculation of labour availability on the part of the [r]espondent.’ Exhibit 2 at [10].
A copy of the email exchange is attached to the Heath Statement. Exhibit 2 at [10] and DH1.

Respondent
21 The respondent relied upon a witness statement by Jessica Willis (Ms Willis) signed on 15 November 2024. Exhibit 3 – witness statement of Jessica Willis dated 15 November 2024.

22 Ms Willis is employed by PSL Services Pty Ltd, a subsidiary of the respondent, as the Labour Manager at the Fremantle Terminal where she is responsible for managing the labour resources required to complete work at the Fremantle Terminal. Exhibit 3 at [1] and [3].

23 Ms Willis explains:
(a) the work done by about 226 stevedores at the Fremantle Terminal; Exhibit 3 at [4]  [6].

(b) the two parts of EA 2022; Exhibit 3 at [7].

(c) the categories of employees employed at the Fremantle Terminal:
(i) GMP and G2P EA 2022 sch 10 defines ‘G2P’ as Grade 2 Permanent.
employees work on a roster and Permanent Guarantee Employees (PGE) can be allocated work on an irregular basis; and Exhibit 3 at [8].

(ii) GMP and G2P employees are paid a base salary and overtime to work the rosters set out in EA 2022; Exhibit 3 at [9].

(d) the rosters in cl 8 of the Fremantle Trial Schedule, including roster designations; Exhibit 3 at [9].

(e) the system of debits and credits for employee hours in cl 9 of the Fremantle Trial Schedule, including cancelled shifts or shifts that are ‘not picked up’; Exhibit 3 at [10].

(f) the allocation of work generally, including on 6 April 2024; Exhibit 3 at [11]  [16];
and
(g) the making and correcting of allocations errors. Exhibit 3 at [17].

24 Ms Willis explains the VWA Allocation System as follows: Exhibit 3 at [19]  [20].

(a) it was the outcome of bargaining in relation to rosters at the Fremantle Terminal which resulted in the Fremantle Trial Schedule (including the VWA) being included in EA 2022;
(b) many weekend shifts in the corresponding cl 8 tables are marked ‘V’ with or without a ‘#’;
(c) employees are required to be available to work and to perform work on ‘V’ days up to a particular number of hours (specified in cl 9) and in cl 5.1 and cl 5.2; 160 hours for GMP on 7×1 roster and 124 hours for GMP on 3×1 roster and G2P.

(d) employees are able to scratch specified numbers of VWA days in each roster cycle, meaning the day became ‘unavailable’ for work; and
(e) subject to availability (arising from scratchings and completion of hours in the VWA cycle), employees are allocated [to what] based on a ‘clock’ or ‘tumble’ roster.
25 Ms Willis explains the ‘clock’ or ‘tumble’ roster. Exhibit 3 at [21] and [22].
In the Willis Statement at [23], Ms Willis states that on Wednesday (before the relevant weekend) she re-runs the tumble roster and then decides whether to approve or deny applications to scratch depending on the number of employees available in the two categories on each of the two weekend days. She further states that where employees were not strictly entitled to scratch, she would try to reallocate them to other shifts if this was possible.
26 Once the tumble roster is finalised, a copy is emailed to the Fremantle Employee Representative Committee (ERC) and a hard copy hung on the notice board in the amenities room to provide an opportunity for the review of the roster before the weekend.
27 On the Friday before the relevant weekend available employees are allocated in accordance with an ‘order of pick’ outlined in paragraphs [25] and [26] of the Willis Statement.
28 Ms Willis states employees are able to nominate days to scratch where the employee was not available to work VWA shifts, some of which were ‘locked in’ at the start of the roster cycle and others notified during the course of the cycle. Exhibit 3 at [27].

29 In determining whether to approve or reject a request to scratch, Ms Willis had regard to the minimum numbers of employees referred to in cl 5.1 and cl 5.2 of the Fremantle Trial Schedule. Exhibit 3 at [28].

30 Before the weekend of 6  7 April 2024, Ms Willis said she followed the process in generating the tumble roster and assessing availability, and a draft roster was posted on the noticeboard with an email sent to the ERC on 4 April 2024. Exhibit 3 at [29].

31 According to Ms Willis, Mr Christie submitted his request to scratch after 11.30 am on 3 April 2024. Exhibit 3 at JW3.
As a result, Ms Willis understood that Mr Christie was not entitled to scratch on 6 April 2024.
32 Ms Willis said she made mistakes in counting the number of GMP employees available on 6 April 2024, and believed there would be less than 24 employees if further scratchings were permitted. She details how she made this mistake. Exhibit 3 at [32] to [34].

33 Following what Ms Willis describes as the ‘incorrect allocation’ for 6 April 2024, the respondent implemented several measures to prevent a recurrence of the error that led to the incorrect allocation, which included altering the spreadsheet for Saturday and Sunday and then it being reviewed by an Operations Manager. Exhibit 3 at [36].

34 On about 5 July 2024, by agreement, the VWA allocation system ceased being in use. Exhibit 3 at [38].

The Parties’ Contentions
35 The principles applicable to the interpretation of industrial agreements are well known. In summary, the interpretation of an industrial instrument begins with consideration of the natural and ordinary meaning of the words used. City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426, 438 (City of Wanneroo).
An industrial instrument is to be interpreted in light of its industrial context and purpose and must not be interpreted in a vacuum divorced from industrial realities. City of Wanneroo 438, 440.
An industrial agreement must make sense according to the basic conventions of English language. City of Wanneroo 440.
The circumstances of the origin and use of a clause is relevant to an understanding of what is likely to have been intended by its use. Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54.
Narrow and pedantic approaches to the interpretation of an industrial agreement are misplaced. Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182; Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 214 ALR 56.

The claimant’s submissions
36 The claimant’s position is that the Affected Workers satisfied the conditions contained in EA 2022 enabling them to scratch work on 6 April 2024, and the respondent contravened EA 2022 in denying or refusing to give effect to the scratch.
37 The claimant submits that while there is capacity under the FWA to amend an enterprise agreement once made, there is no capacity for the parties to an enterprise agreement to contract out of its terms. No application was made to amend the terms of EA 2022 and, therefore, the parties to EA 2022 are bound by its terms.
38 The parties accept that the Affected Workers exercised their ‘entitlement’ to scratch work on 6 April 2024. It is also accepted that the precondition to scratch under EA 2022 was met, namely that a minimum number of employees were available.
39 The claimant submits that consequently the ‘right’ to scratch is absolute, although in its oral submissions the claimant contended the right to scratch was qualified by the request being made within time and there being a minimum number of employees available to work on the particular day.
40 Additionally, in its oral submissions the claimant accepted that one of the Affected Workers, Mr Christie had not submitted the request to scratch by 11.30 am on the preceding Wednesday, and thus was ineligible for consideration of the request.
41 The entitlement to scratch under EA 2022 is unambiguous and, when viewed objectively, a failure by the respondent to facilitate the scratch is a contravention of the agreed terms of EA 2022.
42 There may be other facilitative processes contained in EA 2022, but they do not dilute, nor limit, the discrete entitlement found in cl 5.1, Part B, Schedule 2.
43 The respondent admits the minimum number of employees were available to work on 6 April 2024 and concedes that the Affected Workers were denied the entitlement to scratch 6 April 2014 because of mistakes made in counting available employees.
44 While the respondent has taken measure to ensure this mistake does not happen again, it does not excuse their failure to comply with EA 2022 and does not affect liability.
45 The claimant contends that the respondent’s submissions on the construction of cl 5.1 is unworkable where the respondent distinguishes between mandatory and non-mandatory parts. The claimant relies, in part, on a decision by the IMC before a different Industrial Magistrate, Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd [2024] WAIRC 01041; (2025) 105 WAIG 263 (Qube), specifically, at [100], as it relates to comments made about the claimant not being required to prove intention to do something.
The respondent’s submissions
46 The respondent says there is no breach of cl 5.1 because its obligation to grant scratch requests is conditional on the need to ensure sufficient staffing levels and is a matter of management prerogative. That is, it is within the respondent’s entitlement under EA 2022 to refuse an employee’s request to scratch.
47 In relation to Mr Christie, the respondent says it did not breach cl 5.1 of EA 2022 because the scratch request was made after 11.30 am on the preceding Wednesday (3 April 2024) and therefore his request was invalid under the terms of cl 5.1, and he was ‘considered available for allocation’.
48 In relation to Mr McCorriston, Mr Drew and Mr Hodnett, the respondent says the requests to scratch were refused on the basis that the respondent believed there would be insufficient employees available to work on 6 April 2024 if their scratch requests were approved. While the respondent may have been mistaken as to the number of employees available to work on 6 April 2024, it was within the respondent’s power to agree or refuse the requests based on employee availability and the need to safely and effectively staff the shift.
49 The respondent submits cl 5.1 of EA 2022 must be understood in the context of the whole of EA 2022 and the operation of the civil penalty regime under the FWA. In this case, cl 5.1 must be understood in the context of the complex rostering and allocation provisions in EA 2022.
50 The respondent refers to the two parts of EA 2022, where Part A is generic in nature and applies across the respondent’s operations and Part B is specific in nature and applies to specific terminals or ports with Part B, Schedule 2 applying to operations at the Fremantle Terminal.
51 Part A contains generally applicable rostering and allocation provisions (in cl 19 and cl 22, respectively). Part B contains the Fremantle Trial Schedule. The respondent says the application of these provisions are complex and many of the steps in the rostering and allocation process rely on the respondent’s managers to apply them. Further, EA 2022 does not establish the rostering provisions as ‘hard-and-fast’ rules where cl 1 of the Fremantle Trial Schedule refers to the rostering provisions as ‘guidelines’ and the provisions anticipate errors and outlines a process for dealing with the errors.
52 The respondent says that the request to scratch a variable weekend shift is not an unfettered right where:
(a) a scratch request must be agreed with ‘Company HR Management’; and
(b) the ‘scratching’ provisions do not provide that employees have a right to have any particular scratch request approved (on a particular day or date) but the entitlement is for a maximum of ‘9 days throughout the 16-week cycle’.
53 EA 2022 does not expressly state what the respondent is to consider in agreeing to scratch requests but refers to four factors under EA 2022 which it says are relevant: the guaranteed supply of labour under cl 5.1; the claimant’s express agreement that there will be a guaranteed supply of labour under cl 5.1; the respondent’s occupational health and safety obligation under cl 15.2 in Part A; and the respondent’s management prerogative under cl 15.2 in Part A.
54 In relation to the Claim and Mr McCorriston, Mr Drew and Mr Hodnett, Ms Willis’ genuine albeit mistaken belief about staffing levels determined her decision not to scratch requests on 6 April 2024. This was a reasonable decision where it was for a proper purpose in that it was consistent with the respondent’s obligation to sufficiently staff shifts to ensure operational feasibility and safety.
55 The claimant’s construction, where the employee has an absolute right to scratch, results in an ‘absurd’ situation where the respondent is exposed to civil penalties for applying complex rostering arrangements which foreshadows administrative errors and their correction.
Issues for Determination
56 While resolution of the Claim involves the preferred construction of cl 5.1 of EA 2022, the issues for determination are: what is the entitlement conferred by cl 5.1 of EA 2022; is the entitlement qualified or unconditional; and what, if any, entitlement has been contravened by the respondent?
EA 2022
57 EA 2022 is in two parts, Part A and Part B. Like other enterprise agreements in the same industry, Part A is generic in its application and Part B is specific to a work location.
58 Clause 5.2 in Part A provides that ‘[i]n the event of any inconsistency in this Agreement in relation to Part A and Part B the provisions of Part B shall prevail.’
59 EA 2022 imposes various obligations on employees and the respondent, including, but not limited to, safe work practices, safe working environments, promoting the respondent’s productivity and efficiency, employment standards, etc.
60 Relevant to staffing levels, Part A contains the following:
Clause 12 Occupational Health and Safety and Rehabilitation
…
12.16 Staffing for any operation will be entirely based on safe work practices and operational requirements as determined by the Company, in accordance with occupational health and safety legislation.
…
Clause 15 Job Staffing and Work Practices
15.1 Levels of staffing, equipment and methods of operation may be varied from time to time by the Company to reflect changes consistent with safe work practices and relevant Safety Codes, improved technology, and new types of machinery or systems or for any other reason.
…
Clause 19 Rostering and Remuneration
19.1 It is agreed that the Company will at all times be able to roster and allocate any employee individually in a flexible manner in accordance with the agreed rosters set out in the Port Part Bs in this Agreement.
61 Part B, Schedule 2 contains two rostering arrangements relevant to the Fremantle Terminal: Trial Fremantle Part B Arrangements and the Default Fremantle Part B Arrangements. The rostering arrangement relevant to the Claim is the Trial Fremantle Part B Arrangements or the Fremantle Trial Schedule. Clause 5.1 is within Part B.
Clause 5.1 of the Fremantle Trial Schedule
62 Schedule III provides cl 5.1 of the Fremantle Trial Schedule in full.
63 Clause 5 explains the arrangements for weekend allocation for GMP and G2P employees.
64 There are differences between the two categories of employees but broadly speaking the allocation of VWA days are similar.
65 Clause 5.1 of the Fremantle Trial Schedule is referrable to the two tables in cl 8 for the GMP 7×1 Roster and the GMP 3×1 Roster. Ms Willis explains how these rosters are read and are applied.
66 Clause 5.1 of the Fremantle Trial Schedule is a mixture of explanation, description and application of weekend allocation relevant to GMP employees. It is loosely drafted.
What is the entitlement under cl 5.1?
67 Clause 5.1 of the Fremantle Trial Schedule provides for two situations as it relates to the GMP employees’ availability to scratch on VWAs:
1. employees on the 7×1 roster will be able to scratch on VWAs for nine days throughout the 16week cycle; and
2. employees on the 3×1 roster will be able to scratch on VWAs for seven days throughout the 16week cycle.
68 At its most fundamental, the claimant submits that this gives rise to an entitlement to scratch on the available day as requested by the employee, provided there is a minimum number of employees, and the request is made in time.
69 The difficulty with the claimant’s submission is that its effect excludes the respondent’s agreement or approval and other factors countenanced by EA 2022, as discussed below.
70 Further, having regard to the text of cl 5.1 of the Fremantle Trial Schedule to the extent there is an entitlement to scratch on VWAs, it is to scratch either nine or seven days in a 16-week cycle, not to scratch days specified by the employee, subject to the qualification that five or six of these days can be locked in and approved prior to the start of the 16-week cycle. Five lock-in days applies to the 3×1 roster and six lock-in days applies to the 7×1 roster.
The remaining two or three days can be taken throughout the 16-week cycle. The two remaining days applies to the 3×1 roster and the three remaining days applies to the 7×1 roster.

71 A plain reading of cl 5.1 does not support an employee having an entitlement to scratch available days specified by the employee, save that the employee can ‘lock-in’ scratch days at the start of the 16-week cycle but even that is subject to approval.
72 This is also supported by the context in which the entitlement arises, namely cl 5.1 in the fifth paragraph states ‘[i]rrespective of the scratch arrangements, the Union agrees to a guaranteed supply of labour and therefore “scratch days” are subject to availability.’ Further, the allocation to weekend work will be based on a ‘clock roster’ rotation subject to normal consideration of skills.
73 Thus, the underlying tenure of the clause, both in word and context, does not, in my view, support the claimant’s construction.
74 I also note that cl 1 of the Fremantle Trial Schedule enables flexibility in allocation for any valid, unavoidable skill, performance, or cost-effective reason.
75 I also make two further observations: the first in relation to the Qube decision relied upon by the claimant; and the second in relation to the acknowledgment of errors under cl 2 of Fremantle Trial Schedule.
76 The decision in Qube related to a different enterprise agreement and a different contravention. Beyond reciting general principles relating to the construction of the industrial instruments, it has no application to the Claim. The respondent made no submission that the claimant was required to prove the respondent did not intend to comply with cl 5.1 of the Fremantle Trial Schedule or that the claimant was required to prove any contravention was intentional. Further, the claimant’s case never relied upon the contention that an entitlement under cl 5.1 of the Fremantle Trial Schedule was ongoing in the manner provided in Qube.
77 The contravention alleged by the claimant is that the respondent refused to allow the Affected Workers to scratch a VWA day when the minimum number of GMP employees remained available to work that day, being 6 April 2024. The Claimant’s Originating Claim lodged 9 May 2024.

78 Clause 2 of the Fremantle Trial Schedule provides a mechanism for the correction of errors as it relates to the order of pick due to an allocation error. My impression is that this relates more to the allocation regime referred to in cl 1 of the Fremantle Trial Schedule than it does to an error made about a request for a scratch day. However, the sentiment remains albeit the intention behind cl 2 seems to be to reimburse employees in the context of the credit/debit system.
Is the entitlement unconditional or qualified?
79 The entitlement to scratch is qualified or conditional. That is, there are factors provided under cl 5.1 in considering the availability of a scratch day including:
· the number of hours required for the 7×1 and 3×1 rosters;
· the availability of a minimum number of GMP employees for Saturday and Sunday, although this number may be subject to alteration to ensure labour availability as well as maximising the pay back of debt hours;
· skill mix;
· allocation order;
· the availability of scratch days; and
· the percentage ratio of GMP/G2P. Clause 12.4 of the Fremantle Trial Schedule.

80 There may be other factors, but the point remains. On a plain reading of cl 5.1 of the Fremantle Trial Schedule, it is not an ‘absolute right’ in the manner suggested by the claimant. That is, on the claimant’s case, an employee requests to scratch a particular day, and the respondent must accede to the request based on the minimum number of GMP employees available on a Saturday or Sunday and the time the request is made. In my view, the wording in cl 5.1 and the context in which the entitlement appears does not give rise to such an immutable situation.
81 While not directly in issue, I am not persuaded that the words in cl 5.1 necessarily give rise to an absolute requirement to scratch the number of days provided. The use of the words ‘will be able to’ is less directive than suggested by the claimant and more consistent with being given an option to do something. Further, the context of ‘scratch days’ being subject to availability where the claimant agrees to a guaranteed supply of labour also suggests there is no guarantee that the number of days will be achieved. I also note that there is no detriment for employees not reaching the number of VWA hours, but if they do before the roster cycle ends, additional hours worked can be credited to any debit balance.
82 Consistent with this, is the respondent’s ability to rearrange the numbers and skill of the rostering panels in cl 8 of the Fremantle Trial Schedule Clause 2 of the Fremantle Trial Schedule.
and general framework for rostering arrangements provided in cl 1 of the Fremantle Trial Schedule. Further, all employees are considered available for allocation to weekend shifts unless agreed with the respondent by 11.30 am on the Wednesday prior to the weekend, which appears to have no bearing on the number of GMP employees available.
83 Ultimately, the respondent retains a discretion to run its business, albeit within certain confines specified in EA 2022 and in compliance with other written laws. The situation may have been different had cl 5.1 of the Fremantle Trial Schedule included words importing a mandatory obligation on the respondent to approve any request made by an employee to scratch on a given day. In my view, the words in the clause do not go that far.
84 Finally, the number of available VWA or scratch days in cl 8 of the Fremantle Trial Schedule for the GMP 7×1 roster is 18; GMP 3×1 roster is 14; and G2P roster is 14. While many of the VWA days available for the three categories of employees are the same, some are not (see weeks four and 13 of each table). This suggests the availability of scratch days is different even between GMP employees and is not dayspecific beyond being available on identified Saturdays and Sundays.
What, if anything, did the respondent contravene?
85 The difficulty for the claimant is identifying what, in fact, the respondent has contravened, bearing in mind that the claimant must prove to the requisite standard not only the preferred construction of cl 5.1 but also that the respondent has contravened cl 5.1 of EA 2022 in refusing the Affected Workers’ requests to scratch on 6 April 2024.
86 Where the entitlement is the availability to scratch VWAs for seven or nine days throughout a 16-week cycle, there may be no contravention because one requested day has been refused even if it was theoretically available. Similarly, even if five or six scratch days had been locked in and approved prior to the 16-week cycle, the remaining two or three days could still be available to be taken notwithstanding the refusal to scratch on a particular day, in this case – 6 April 2024.
87 There is no evidence which demonstrates any of the Affected Workers were deprived of an entitlement to scratch seven or nine VWA days within the 16-week cycle, even if this entitlement was absolute in the manner suggested by the claimant. Similarly, there is no evidence which demonstrates the theoretical remaining two or three days were not available to be scratched upon the refusal to scratch 6 April 2024.
88 Interestingly, what Ms Willis’s evidence demonstrates is that the respondent applied some flexibility to the process to enable scratching to occur if it could not occur on the days requested by an employee. I note there is no suggestion by the claimant that the respondent has in some other way contravened cl 5.1 of the Fremantle Trial Schedule in doing so.
89 In any event, the Claim and its particulars are that the Affected Workers were refused their requests to scratch on 6 April 2024, not that they were denied the totally of their scratch days within the 16-week roster cycle or denied their theoretical two or three flexible scratch days or that either of these entitlements have in some other way been extinguished.
90 I am not satisfied the words in cl 5.1 of EA 2022, when considered in context and in accordance with industrial realities, entitles the Affected Workers to scratch the nominated day of 6 April 2024. In my view, the preferred construction of cl 5.1, as it relates to an employee entitlement, is that cl 5.1 is a qualified entitlement to request to scratch seven or nine VWA days throughout a 16-week roster cycle. Within that entitlement, employees may request to lock-in a number of scratch days, subject to approval, with other days being taken on an adhoc basis, subject to availability.
91 That the respondent previously acceded to employees’ requests for scratch days does not mean in refusing the Affected Workers’ requests on 6 April 2024 it contravened cl 5.1 of the Fremantle Trial Schedule. Whatever the reason for the refusal, in this case because of Ms Willis’s genuine mistake where she has graciously ‘fallen on her sword’, but where there is no evidence that the overall qualified entitlement has been contravened or otherwise extinguished, what happened before does not somehow imbue cl 5.1 of the Fremantle Trial Schedule with more than what it provides.
Outcome
92 Having regard to the Claim and the preferred construction of cl 5.1 of EA 2022, I am not satisfied to the requisite standard that the respondent contravened cl 5.1 or s 50 of the FWA.
93 The Claim is dismissed.



D. SCADDAN
INDUSTRIAL MAGISTRATE

SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA)
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA.
[2] The IMC, being a Court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: FWA, s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA), s 81 and s 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA, s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include failure to comply with an enterprise agreement: FWA, s 50.
[5] An obligation upon an ‘employer’ covered by an agreement is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 42, s 53, s 14 and s 12. An entitlement of an employee covered by an agreement is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA, s 42, s 53 and s 13.
Contravention
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for an employer to pay to an employee an amount that the employer was required to pay under the modern award: FWA, s 545(3)(a).
[7] The civil penalty provisions identified in s 539 of the FWA include:
· Failing to comply with an enterprise agreement: FWA, s 50.
[8] An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 14 and s 12. The obligation is to an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA, s 13
[9] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for:
· An employer to pay to an employee an amount that the employer was required to pay under the FWA: FWA, s 545(3).
· A person to pay a pecuniary penalty: FWA, s 546.
[10] The IMC may order the payment of a pecuniary penalty, or part of a penalty, be paid to the Commonwealth, a particular organisation or a particular person: FWA, s 546(3).
Burden and standard of proof
[11] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not,’ the burden is discharged, but, if the probabilities are equal, it is not.
[12] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J, said in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (362)
SCHEDULE II: Construction of Industrial Instruments
[1] This case involves, in part, construing industrial agreements. The relevant principles to be applied when interpreting an industrial instrument are set out by the Full Bench of the Western Australian Industrial Relations Commission in Fedec v The Minister for Corrective Services [2017] WAIRC 00828; 97 WAIG 1595 [21] - [23].
[2] In summary (omitting citations), the Full Bench stated:
The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement:
(1) The primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) It is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
(3) The objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
(4) The apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
(5) An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ’;
(6) An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation; and
(7) Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
[3] The following is also relevant:
· Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed. City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 (City of Wanneroo) at [53]  [57] (French J).
· Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate. City of Wanneroo [53]  [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 [28]  [30] (Katzmann J).
SCHEDULE III – Clause 5.1 of the Fremantle Trial Schedule
5. Weekend Allocation Arrangements
5.1 GMP Employees
There will be no change to the functionality of irregularly rostered and payback shifts on weekends.
Weekend rostered shifts will be converted to equivalent hours which will then be worked by allocation to available shifts across the totality of the 16-week cycle. The VWA hours required for each roster are as follows:
(i) GMP Operations 7 & 1 = 160 hours
(ii) GMP Operations 3 & 1 = 124 hours
Employees on the operations 3&1 roster will be able to ‘scratch’ on VWAs for 7 days throughout the 16-week cycle. 5 of these days can be locked in prior to the 16-week cycle and can be approved prior to the start of the 16 weeks. The remaining 2 days can be taken throughout the 16-week cycle.
Employees on the operations 3&1 roster will be able to ‘scratch’ on VWAs for 7 days throughout the 16-week cycle. 5 of these days can be locked in prior to the 16-week cycle and can be approved prior to the start of the 16 weeks. The remaining 2 days can be taken throughout the 16-week cycle.
Irrespective of the scratch arrangements, the Union agrees to a guaranteed supply of labour and therefore ‘scratch days’ are subject to availability. It is agreed that a minimum number of GMP employees on VWA will be available as follows:
(i) 24 GMP employees for Saturday, and
(ii) 37 GMP employees for Sunday.
The above GMP VWA numbers will be subject to periodic review between the parties (4-weekly for the duration of the trial, and as an agenda item at ERC meetings thereafter, for the duration that the Agreement applies), and will be altered as required to meet the intended purpose of ensuring labour availability (sufficient to run two crane gangs and one lashing gang continuously throughout the weekend, plus R&D during the day shift); as well as maximising the payback of outstanding debit hours.
Order of allocation will be Irregularly (I) rostered employees, rostered employees working variable shifts (VWA), off available (O/A) employees, PGE, employees working overtime.
If an employee reaches the maximum number of 14 consecutive shifts, they will not accrue hours for the 15th day provided they have not contributed to the 14 consecutive shifts through their own voluntary work pattern.
At the conclusion of the 16-week cycle a reconciliation of hours worked against aggregate hours to be worked under the roster system will be conducted and each employee’s debit balance adjusted accordingly.
Employees who reach their VWA hours prior to the end of the 16-week cycle will have additional worked hours immediately deducted from their debit balance.
Allocation to weekend work will be based on a ‘clock roster’ rotation subject to normal considerations of skills. The ‘clock roster’ will remain the same for both Saturday and Sunday’s pick and will be available on the noticeboard on the Thursday afternoon prior to the subject weekend.
All employees will be considered available for allocation to weekend shifts unless agreed with Company HR Management by 1130 on the Wednesday prior to the subject weekend.
For the purposes of worker’s compensation for an extended period of time, the average hours worked across all employees will apply.
For the purposes of leave taken in week increments (i.e. Annual Leave or Long Service Leave), hours will accrue towards the VWA hours on days marked with a # in the roster.