C2008/2422, Transcript of Proceedings [2008] AIRCTrans 297 (24 June 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18625-1

JUSTICE GIUDICE, PRESIDENT
DEPUTY PRESIDENT IVES
COMMISSIONER GRAINGER

C2008/2422

s.120 - Appeal to Full Bench
Appeal by Transport Workers’ Union of Australia
(C2008/2422)

MELBOURNE

10.05AM, WEDNESDAY, 11 JUNE 2008

PN1

MR A HATCHER: I seek leave to appear as counsel for the appellant.

PN2

MR C O'GRADY: I seek leave to appear as counsel on behalf of the respondent.

PN3

JUSTICE GIUDICE: Thank you, Mr Giudice. Leave is granted in each case. Yes, Mr Hatcher.

PN4

MR HATCHER: As it please the Commission. Can I begin by providing a book which serves as both a supplementary appeal book and also contains some cases to which we intend to refer?

PN5

JUSTICE GIUDICE: Thank you.

PN6

MR HATCHER: There were two major issues in the original appeal book, one was that it did not actually contain a copy of the agreement which is the subject in contest and secondly, excluded some of the exhibits tendered by Qantas which go to some of the historical aspects of the industrial instrument in question. The subject matter of the appeal is the proper interpretation of certain provisions of an agreement, a pre reform certified agreement known as the Transport Workers Union Qantas Airways Ltd Enterprise Agreement VI and it's colloquially known as EBAVI and I may use that expression when referring to it.

PN7

The appeal is brought pursuant to section 45 of the pre reform Workplace Relations Act. The appeal notice cites a number of paragraphs of subsection (1) of section 45 but I think it's sufficient for current purposes to rely upon paragraph (b). That is, we say that his Honour in determining the question before him finally disposed of it in a manner which can be described as the making of an order. I understand from my learned friend and he'll correct me if I'm wrong, leaving aside the question of leave to appeal there is no jurisdictional question raised about the capacity for the Commission to hear this appeal.

PN8

The primary issue for determination below and here concerns interpretation of the part time employment provisions of EBAVI and in particular the way they relate or interact with, if at all, with the shift work provisions of the agreement. The factual background or perhaps the underlying dispute can be described fairly briefly. The underlying dispute arose because Qantas has adopted a practice of using the shift roster change provisions of the agreement, which I'll come in due course, to not only change the starting and finishing times of part time employees but also to increase the ordinary hours of work of part time employees. So for example, as we understand Qantas' position and as it was upheld by his Honour below, Qantas says that where you have a part time employee who has been engaged say for 20 hours per week that using the shift roster change provisions of the agreement it can be require that employee to increase those ordinary hours under the agreement up to a maximum of 30 hours per week.

PN9

It's that issue which is at the heart of the dispute. There's a subsidiary issue about the operation of the roster change provisions in the agreement which I'll come to later but the part time issue is the primary issue. The point we want to make from the outset is that the practice adopted by Qantas, we say, is contrary to some of the fundamental notions of part time employment. That is, we say and I think we said this in fact below and in the notice of appeal, that it effectively subverts the concept of genuine part time employment. We say the characteristics of part time employment involve an agreed amount of hours less than full time hours which meets both the needs of the employee and it may be in terms of family responsibilities or some other personal issues and also conversely meets the operational needs of the employer.

PN10

We say before we come to the text of the agreement itself, we say as a general proposition the notion that an employee could unilaterally, that is without consent of the employee, increase a part time employee's hours we say strikes at the fundament of the notion of part time employment. I don't think I need to read any particular passage of it but an example of the conceptual basis of part time employment that was given in the parental leave test case which was reported in (1990) 36 IR 1 and it's in the additional bundle which I have provided to the Commission and perhaps contrary to the index at the front it's behind tab G in the decision.

PN11

Now, the parental leave case of course dealt with part time employment in a fairly limited context, that is, how it would apply to the employees who have taken parental leave and might want to take on part time work. But the Commission, and I'll just give the reference, will see at pages 12 to 14 that there is a discussion about the relationship between part time work and parental responsibilities and further in that case the Commission handed down a standard clause, that is again a limited part time clause for the purpose of parental leave, which in part is consistent with the proposition that we advance as to the concept of part time employment. The relevant part of that decision is at page 29 of the report.

PN12

At pages 28 to 29 which are reproduced on the same page there's set out the part time work clause which the Commission awarded with respect to parental leave and on page 29 at about point 7 there's a subheading Part Time Work Agreement that's clause 5 of part D of the standard provisions and it provided that in (a)(ii):

PN13

The hours to be worked by the employee and days upon which they will be worked and commencing times to be worked will be agreed between employer and employee.

PN14

And then in paragraph (b) that agreement could be varied by consent. So certainly in one of the foundational cases concerning part time employment, albeit again in that limited context, the Commission was concerned with a concept which involved agreed fixed hours and changes by consent. Now, let me emphasise that we don't say that the language of the agreement here is at all fours with what happened in the parental leave test case. We point it however to advance this proposition, that - well, it's two propositions. Firstly, that part time employment has the basic foundational concept which I've just described and secondly, to interpret agreement or any industrial instrument contrary to that fundamental concept would involve very express or clear words.. That is, it would be counter intuitive absent very clear words to interpret an industrial instrument to say that employee/employer has the right to change part time hours unilaterally without consent.

PN15

I don't think I need to say what practical consequences that might be, for example, for an employee who has chosen part time employment to suit their personal circumstances.

PN16

DEPUTY PRESIDENT IVES: Mr Hatcher, can I just ask you to tell me what happens, at least as you understand it, as a matter of fact in respect of the way things occur currently? 18.5.8 requires agreement of the employee to any change to hours up to 7.6.

PN17

MR HATCHER: Yes.

PN18

DEPUTY PRESIDENT IVES: And in the instance of gaining that agreement single rates apply.

PN19

MR HATCHER: Yes.

PN20

DEPUTY PRESIDENT IVES: And 28.4.3 provides for double time in circumstances where there is notice of less than two days.

PN21

MR HATCHER: Yes.

PN22

DEPUTY PRESIDENT IVES: So an employee currently who is on part time who is approached in respect of increasing his or her hours on a particular day but does not agree, then is it your understanding that that then is simply required by the organisation and double time is paid or what is the circumstance?

PN23

MR HATCHER: As I understand what has been happening on the ground, the company asserts that if it gives two days notice of the change then it can require the employee to work the additional hours and can do so without penalty and that is the genesis of the dispute.

PN24

DEPUTY PRESIDENT IVES: But if there is less than two days notice then double time is paid, is that - - -

PN25

MR HATCHER: That would follow from Qantas' position. I don't know that that has been happening as a matter of practice and I'm not sure if the evidence went to that question.

PN26

DEPUTY PRESIDENT IVES: Because it would seem that that would be the only purpose that the agreement would serve in 18.5.8. The agreement would only serve to provide the employer with the ability to pay single time for that time, which would seem a rather odd circumstance but that would seem to be the only purpose it would serve. In circumstances where there's less than two days notice then if the individual agrees to work the extra hours, then they can be paid at single time under the terms of 18.5.8.

PN27

MR HATCHER: Can I deal with the clauses sequentially and I hope I can deal with the point your Honour is making as I go. But let me say from the outset that the final proposition we advance is that clause 18 is a scheme on its own dealing with part time employment and that the roster change provisions in the shift work clause, clause 28, 28.4.3 in particular, in the first instance either don't apply to part time employees at all ,and I'll demonstrate why there's a lot of textual support for that proposition, or in the alternative if they do, they do only in the conventional sense. That is, to allows hours of work, that is starting and finishing times to be changed, not the quantum of hours.

PN28

DEPUTY PRESIDENT IVES: No, look, I understand your arguments. I just wonder how currently practical effect is given to these things because somebody must be putting these things into effect and whether that's right or wrong I just wonder what is actually happening.

PN29

MR HATCHER: I think the position is as I've stated it, that is, that as a matter of practice Qantas is using the two day notice provision to require part time employees to work additional hours without penalty and without consent.

PN30

DEPUTY PRESIDENT IVES: I see, thank you.

PN31

MR HATCHER: And it is that proposition which is the crux of the dispute. I mentioned the parental leave test case. Can I just give this reference, it's not in the bundle, but in the award simplification case reported (1997) 75 IR 272, a Full Bench of this Commission considered among a range of other things principles for part time employment in the context of the award simplification requirements of the then Workplace Relations Act and the general propositions or principles which the Commission established appear at pages 304 to 305 and a proposition definition which was put in - sorry, the definition which was put in the Hospitality Award was adopted as standard was that, among other things, the regular part time employee was defined as an employee who had reasonably predictable hours of work.

PN32

Now, again we only cite that to demonstrate that this idea of predictable hours is a fundamental concept when it comes to part time employment and again we repeat that you wouldn't interpret an instrument as departing from that concept unless there are absolutely retractable words in the particular instrument.

PN33

JUSTICE GIUDICE: Mr Hatcher, we're talking about a number of ports, are we?

PN34

MR HATCHER: The agreement applies nationally. The dispute as I understand it is concerned with Melbourne.

PN35

JUSTICE GIUDICE: Yes. I was looking at the terms of 18.4 which seems to provide for an agreement to be reached at each port on how part time employment will be implemented.

PN36

MR HATCHER: Yes.

PN37

JUSTICE GIUDICE: It specifies some matters that are to be agreed and then says things that aren't agreed or problems can be dealt with under the procedure and so on.

PN38

MR HATCHER: Yes.

PN39

JUSTICE GIUDICE: But is there in fact any written down agreement about these things at Melbourne?

PN40

MR HATCHER: I'm not sure about that. I'll come to in due course but
there's - - -

PN41

JUSTICE GIUDICE: It's been suggested there isn't by those instructing you.

PN42

MR HATCHER: I think the instruction is no.

PN43

JUSTICE GIUDICE: Yes.

PN44

MR HATCHER: There is a history to this provision and it came in Qantas' submission below with which we agree is the history.

PN45

JUSTICE GIUDICE: Yes.

PN46

MR HATCHER: And shows that it started off in EBAIII which was a multi union agreement and then it was picked up in subsequent agreements which were confined to my client alone.

PN47

JUSTICE GIUDICE: But so far as the evidence goes anyway, there aren't local agreements dealing with how part time will be implemented in a particular port?

PN48

MR HATCHER: I remember from another case there were something called facilitative agreements which went to some particular aspects of part time employment but I don't understand those to be relevant here.

PN49

JUSTICE GIUDICE: Yes, thank you.

PN50

MR HATCHER: Can I just ask the - - -

PN51

JUSTICE GIUDICE: Just while I have interrupted you, Mr Hatcher, I know you're very systematic and you'll get to all these points, but just the relationship between a part time provision and the hours of work provision, the hours of work provision is couched in terms of full time employment and talks about 38 hours per week and so on.

PN52

MR HATCHER: And we say they're significant for reasons which I'll explain in due course.

PN53

JUSTICE GIUDICE: Yes. But surely there must be some parts of the provision which apply to part timers, for example, the shift loadings. Do they get shift loadings under the - - -

PN54

MR HATCHER: Yes, they do.

PN55

JUSTICE GIUDICE: Yes. So although in terms the provision seems to be about full time work, it's got some application to - or some parts of it have application to part timers so the part time provision isn't a complete code.

PN56

MR HATCHER: Not as to payment.

PN57

JUSTICE GIUDICE: No.

PN58

MR HATCHER: If I can just briefly explain the history?

PN59

JUSTICE GIUDICE: Yes.

PN60

MR HATCHER: The shift work provisions originate from the relevant award and predate by some time part time provisions and they were taken and applied from the award until EBAVI. EBAVI, as it were, consolidated everything to one document so that shift work clause was pulled from the award and put into the agreement in the context where it predated part time employment and from your Honour's own observation was clearly drafted without part time employment in mind. Part time employment provisions had a different history. They originated, as least so far as relevantly so far as Qantas is concerned, in EBAIII and have been reproduced with some changes in the following EBAs and they've only married up into one document in EBAVI.

PN61

So one can readily see the difficulties that might arise when clauses from two different sources are put together in one document without any real reconsideration of how they relate. Of some importance or perhaps of critical importance we would say, is that the shift work clause having been drafted with full time employees in mind because employees who have a fixed number of hours, 38, which can't be increased or decreased, when one comes to construing the roster change provisions of the shift work clause one can't construe it as allowing something to be done with respect to part time employees even if it applies to them which was never done to full time employees.

PN62

That is, when the shift clause was first established before part time employment in the award it could never have been used or interpreted to mean that the ordinary hours of work of full time employees to whom it then applied could be changed. That was taken as a given, as we'll see when we go through the clause. We say that must remain the case even if the clause applies to part time employees. That is, absence some change in the text it can't be read as somehow having metamorphosed itself without any change in the language to allow something called part timers which it could not have done for full timers. Part of, we say, the problem with Qantas' case is it doesn't explain a clause which originally was never intended to allow ordinary hours to be increased to those whom it applied can now have that effect without ever having had any relevant change to its language or its overall structure.

PN63

Therefore to the extent that, and perhaps I'm repeating myself, to the extent that 18.4.3 - I'm sorry, that's the wrong clause. To the extent that clause 28.4.3 does apply to part timers, even if the Commission finds it does apply, it can't mean that the ordinary hours can be increased. It might mean that their starting and finishing times can be changed consistent with the basic contract of employment but it can't mean that they can have their hours increased from 20 to 30 in circumstances where that simply could not and could never have happened for full time employees. Can I just take the Commission to the text of the agreement.

PN64

JUSTICE GIUDICE: These provisions permit changes to match the staffing requirements to changes in traffic or demand, is that why there are these last minute changes as it were, changes on relatively short notice in people's rosters?

PN65

MR HATCHER: Yes, and some of this is explained in Ms Robinson's evidence below.

PN66

JUSTICE GIUDICE: Yes.

PN67

MR HATCHER: That as one can really understand, the airline industry both has some longer term seasonal factors and also some shorter term factors which sometimes are out of its control and which it must meet. So there's no issue about that. We also know I think that Qantas has a casual workforce I think engaged through labour hire firms at its disposal and it has - - -

PN68

JUSTICE GIUDICE: On this sort of work?

PN69

MR HATCHER: Yes, and it has the capacity under the shift work clause at least with full timers to change hours on comparatively short notice, in a way which we'll explain in due course. So it's not a case that it could possibly be said that absence the capacity to change the basic hours of part time employees that this agreement doesn't provide Qantas with a capacity to meet its operational requirements. Can I take the Commission directly to clause 18, I think I've already touched upon 18.3 which your Honour the President raised with me, but can I note both in 18.3(ii) and in 18.4.3.2 that it appears to have been contemplated that insofar as overtime was concerned full time employees would have priority of the part time employees.

PN70

So it did not appear to be contemplated that part time employees would be performing overtime to a significant degree and again we say that's broadly consistent with the concept we've described with part time employment. 18.5.1, this is on page 8 of the document, is a critical provision. It provides for a minimum engagement of 20 hours per week and four hours per day and a maximum engagement of 30 hours per week. In 18.5.2 there's a fairly complicated provision which has been the subject of Full Bench consideration as to aggregate hours over a year and the capacity for conversion to full time employment and just for completeness can I note the decision which dealt with that clause is at tab JK in the supplementary appeal book.

PN71

18.5.3 provides that before commencing part time employment the employee and employer must agree on a number of things, most notably the minimum weekly hours, and again we say that's consistent with the industrial concept of part time employment. That is, that there should be a starting point by which the employer and employee agree as to what the contract hours are.

PN72

JUSTICE GIUDICE: That's a different thing though, isn't it, the contract hours? The use of the term minimum seems to suggest might be variations.

PN73

MR HATCHER: It does and I'll shortly demonstrate what work we say that word does.

PN74

JUSTICE GIUDICE: Yes, I see. Thank you.

PN75

MR HATCHER: Directly I can say this, firstly, 18.5.4 allows the terms of the agreement established to be varied by consent so that whether permanently or on a less permanent basis the parties can increase the hours among other things, so that's the first thing we rely upon, and that's a requirement 18.5.5 for the terms of the agreement to be put in writing. This is what we say the main word, the word minimum in 18.5.3(i)(a) does, in 18.5.8 there's the capacity in order to satisfy operational commercial requirements in the day for part time employees to have their rostered shift hours extended to 7.6 hours by agreement with single time rates to apply.

PN76

So that when one looks at the phrase minimum weekly hours in the basic agreement it's subject to this capacity that it can be adjusted to meet short term operational requirements or commercial requirements up to 7.6 hours for single time to apply and we say that's the scheme which applies to part time employees at least so far as their quantum of hours is concerned. Basic minimum hours, capacity to change by consent in writing and short term agreements to meet operational needs up to 7.6 hours at single time.

PN77

Now, I will come to his Honour's decision although in a minute but it appears at least implicit in his Honour's decision and reasoning that his Honour read 18.5.8 as confined in a particular way. That is, by use of the words on the day. That is, his Honour seemed to read that as referring only to an agreement to vary that occurred on the day in which the work was to be performed. If his Honour did read it that way then we say that was, with respect, an incorrect reading of it. Words on the day qualify operational commercial requirements. They don't qualify the words by agreement.

PN78

So there's no reason why the agreement can't be reached one day, two days or five days in advance of a particular day where there are particular operational commercial requirements that may need to be met by part time employees working additional hours. I think the significance of this in terms of his Honour's reasoning is that his Honour read 18.5.8 narrowly to provide for variations within a single day agreed to on that day and then looked at the roster change provisions to say that they provided for arranged changes based on a period of notice and his Honour read them together that way.

PN79

We say that was incorrect and that 18.5.8 can refer to changes in advance on the same day or in any other relevant circumstances.

PN80

JUSTICE GIUDICE: But regardless of how you construe the words on the day, it might also be said in favour of your client's position that 18.5.8 is the only provision dealing with extension of daily hours for part timers.

PN81

MR HATCHER: That's correct. That's correct. We say that 18.5 is a scheme or the code, at least as to quantum of hours which applies to part time employees and that one would not look outside that to bring other provisions to bear. That is, that it would be an odd results to have visions which allow for variation of quantum hours to be as it were scattered through the agreement so that one clause is in the part time employment section and another clause is in the shift work section. The interpretation we say, and we'll come to the relevant principles in due course, is that the capacity to change hours - I withdraw that. The specific provisions in 18.5 which apply to part timers and allow for hours to be extended by agreement are to be interpreted as excluding more general provisions elsewhere to be found in the agreement.

PN82

Can I note for completeness sake that in clause 18.6 there's again the capacity by agreement for permanent part time employees to be transferred to relief employment and again that gives more work to do to the phrase minimum weekly hours in 18.5.3.1. Now, can I then take the Commission to perhaps an anomalous provision, 18.10 is a provision dealing with job sharing and the Commission will see that under 18.10.1, general principles, the first thing it reads is as follows:

PN83

Job share is a form of part time work where two employees apply for and agree to share an existing full time position.

PN84

Then in 18.10.5, this is again still under heading of Job Sharing Agreements, there is a clause which is headed 18.10.5, Shift Penalties and if the Commission has that it says:

PN85

As for part time employees - shift penalties will only apply where at least some of the ordinary hours worked by job share on a shift fall on hours that attract shift penalties under clause 28 of this agreement.

PN86

Now, that clause appears to involve perhaps an assumption that the part time provisions themselves make provision for the attraction of shift penalties and we say although clearly there's deficiencies in drafting here it does give this indication, that the only aspects of the shift work clause to apply to part time work was the provision of shift penalties. We say that because the clause can be compared to 18.9.6(b). I'm sorry, yes, it's 18.9.6(b) in relation to relief employees it says this:

PN87

Provisions of clause 28, day work and shift work, must apply to relief employees with the exception of 28.4.3 provided that the make up -

PN88

Et cetera. So when it came to relief employees there was an explicit provision that except for 28.4.3 the whole of clause 28 applies. Now, I query why such clause was regarded as necessary if the general shift work provisions of their own force and according to their own terms applied to all employees and we say that again that's an indication that clause 28 didn't apply with its own force and that that clause was necessary in order to make it apply. Then can I turn directly to clause 28, as has been observed, 28.1 refers to ordinary hours of work for day work and only contemplates full time work that is a 38 hour week.

PN89

Similarly, 28.2 with respect to shift work again contemplates an average of 38 ordinary hours a week over the span of the shift cycle, so it's again only contemplating full time work and we say that those clauses must govern the interpretation of what follows. That is, when this clause is talking about shift work in its own terms as distinct from being applied by something else, it has in mind full time employment only. 28.3 provides for rostered days off and again there's no applicability there to part time employees and then you come to 28.4.3 which is the clause in issue. (a) is of significance, it says:

PN90

Shift work whilst it's not specified, the commencing and finishing time for ordinary working hours of respective shifts.

PN91

Now, we say a function of 28.4.3(a) is to identify the purpose of shift rosters. It's making a statement of the obvious, but the paragraph says this in effect, the purpose of a shift roster is to specify commencing and finishing times. It's not the purpose, we would say, of a shift roster to involve adjustments to ordinary hours of work and we say that what follows must be read in that context. (b) allows for change on seven days notice to shift rosters unless varied by agreement and the majority of employees in the area concerned, and then (c) provides that two days notice is to be provided. How those clauses relate to each other I'll come back to in a little while. That's the subsidiary issue.

PN92

But we say that primarily our first submission is that the clauses aren't to be read as applying to part time employees at all for the reasons I've identified. If we're wrong about that, that is, if they are to be read as applying to part timers, they only apply insofar as they allow changes in the commencing and finishing times of ordinary working hours and don't contemplate and never did contemplate changes to the quantum of ordinary working hours.

PN93

DEPUTY PRESIDENT IVES: Sorry, can you just repeat that, Mr Hatcher?

PN94

MR HATCHER: Yes. The primary submission we make is that 28.4.3 does not apply to part time employees at all because we say the part time employment provisions are a separate scheme. If we're wrong about that then we say that insofar as they do apply to part time employees it's only for the purpose identified in (a), that is, for the purpose of identifying and perhaps changing commencing and finishing times, not for the purpose of changing the quantum of ordinary hours to be performed. We say that's not the function of a shift roster both conceptually and as expressly identified in 28.4.3(a).

PN95

So even on our alternative position Qantas may be able to say that the start time and the finishing time for a part time employee may be changed but it can't say through the roster mechanism, by the way, you'll be working 30 hours next week, not 20 hours.

PN96

DEPUTY PRESIDENT IVES: Yes, thank you.

PN97

JUSTICE GIUDICE: Now, just to follow that analysis through, in relation to a full time employee would it be permissible under 28.4.3 to alter shift lengths?

PN98

MR HATCHER: Shift lengths, yes, but not a quantum of ordinary working hours.

PN99

JUSTICE GIUDICE: No.

PN100

MR HATCHER: And that's the essential distinction we make and of course for the reason I've explained that could never have been the case and when this clause was first made I think it dates back at least to the 80s. There were no part time employees. Full time employees were the function of this clause. They had a fixed number of ordinary hours and it could not and would not have been in the contemplation of those drafting clauses that this clause would involve any change to the quantum of ordinary hours.

PN101

JUSTICE GIUDICE: Yes, thank you.

PN102

MR HATCHER: I touched upon the history of these provisions before. Can I just ask the Commission to turn to the first appeal book at appeal book pages 85 and 86 that appears in the Qantas submission below and it gave a history of the part time provisions and we don't take issue with it.

PN103

DEPUTY PRESIDENT IVES: That's under what tab?

PN104

MR HATCHER: In mine it's under tab 7.

PN105

DEPUTY PRESIDENT IVES: I've got under tab 7 by the looks of it.

PN106

MR HATCHER: So at about point 8 there's a heading History of the Part Time Provisions and it's recorded that part time provisions in EBAVI originated from appendix 4 of what is colloquially called EBAII. It wasn't addressed in the following in EBAIV but it also incorporated EBAIII. Paragraph 8, EBAV again did the same thing with two amendments and then EBAVI crucially consolidated the previous agreements and most of the part time hours provisions and the clauses identified there are the ones which can be traced back to EBAII. Then if you turn to the Qantas submission at paragraph 42, this is appeal book page 94, Qantas says this:

PN107

Qantas agrees that clause 28 of EBAVI -

PN108

That's the roster or the shift work clause -

PN109

was originally drafted for full time employees.

PN110

And the hours of work provisions found in clause 28 came out of the 1988 Transport Workers Airlines Award. For completeness we've put that into the second appeal book and the consolidation only occurred at the point of EBAVI. Prior to that they were applied by virtue of the award. Part time provisions came from EBAIII and prior to the consolidation of EBAVI the previous EBA said that they were to be read in conjunction with those awards but the EBA provisions prevailed to the extent of any inconsistency. Again we agree with all of that.

PN111

When one understands that the part time provisions specific to part time in the earlier EBAs, the award provisions were in the award applying to shift rosters and originated with full time employees and one has the usual position that the EBA applies to the extent of any inconsistency. We say that the historical effect of all of that was that the specific part time provisions ousted any inconsistency to the extent there was one with the shift roster clauses and when they came together in EBAVI the same approach is to be taken as a matter of ordinary construction.

PN112

Now, at this point can I take the Commission to the Vice President's decision which appears in the first appeal book page 4. Paragraphs 5 and 6 deal with the factual background and I think in a way in which we don't take issue and I think paragraph 6 probably deals with the questions your Honour the Deputy President asked earlier as to the factual position and refers to the reliance by Qantas on clause 28.4.3(c). If there's notification after that time you'll see the reference to the payment of double time but as I said, I'm not sure whether that actually occurred in practice.

PN113

Thereafter that there's a summary of the issue for determination and at paragraph 10 his Honour stated correctly the determination sought by my client below. Then the consideration of what I've called the primary issue is dealt with in paragraph 11 through to 16. There's a summary of the parties respective submissions in paragraphs 12 and 13 and the Commission will note in paragraph 13 that Qantas did emphasise beyond the day words in 18.5.8 and contrasting that to the notice provisions in clauses 28.4.3(b) and (c) in order to advance the proposition that they could be read harmoniously together. That's why we say that that's an incorrect reading of 18.5.8 and in fact demonstrates the inconsistency.

PN114

Paragraph 14 there's a quotation from a well known passage, Madgwick J in Kucks, K--u-c-k-s v CSR. In paragraph 15 his Honour stated some general propositions as to the construction of awards and agreements and although we don't say this case is an appropriate vehicle to start exploring in broad terms the principles of construction which are fairly well established I should say that there are some aspects of this paragraph which are a little troubling, with respect. His Honour appeared to make a distinction between the rules of construction as they applied as between awards and agreements and appeared to suggest, with respect, that awards are to be construed in a proposing manner having regard to, among other things, the intention of the award maker and then it's contended that an agreement is of a different nature with primary regard to be had to the terms of the agreement.

PN115

Now again, the distinction may be one of semantics, it's not entirely clear, but we would resist the suggestion that there are any substantially different rules of construction to be applied to agreements as distinct from awards or even as distinct from contracts or indeed statutes or delegated legislation.

PN116

JUSTICE GIUDICE: Well, the materials might be different though, mightn't they, because of the nature of the instrument?

PN117

MR HATCHER: I would accept that the materials by which one would obtain guidance as to the intention might be different but the basic rules of construction are the same. That is, look at the language, read it in its context, try to give effect to the intention of the makers if possible and we would resist any suggestion to the contrary. Can I just give this authority, it's in the bundle, in the second bundle ...... It's the decision of Warramunga Village v Pryde, P-r-y-d-e 130 IR 265 and at page 268 at paragraph 25, unfortunately the photocopy is cut off at the bottom part of the relevant sentence but Finkelstein said this:

PN118

The rules of a court of construction will apply to determine the meaning that should be given to an award ...(reads)... or a private contract.

PN119

So if his Honour was suggesting that some narrow approach had to be taken to the agreement here as distinct from awards or something else then we would say, with respect, that that approach is incorrect. The critical part of his Honour's reasoning is paragraph 16. His Honour wasn't, as was made in the clear in the first sentence, wasn't convinced that 28.4.3 should be read down. If I can stop there, that phrase read down we don't think is an accurate summation of perhaps what was being put on behalf of my client and certainly not what is being put now. We say that it's not so much a case of reading down 28.4.3, it's interpreting it firstly in its own context which demonstrates its limited applicability to full time employees and also interpreting it by reference to the separate scheme applying to part time employees in clause 18. His Honour said:

PN120

There's nothing in the wording of clause 28 provides support for limited application of the words.

PN121

Well, we say with respect that is wrong for the reasons I've identified -

PN122

In my view the changes allow changes of different types and different circumstances. It does not follow that because a certain type of change is permitted by clause 18 there is no basis for a change in other circumstances permitted by another clause.

PN123

If I could stop there, as I'll come to in a second we say that proposition infringes a fairly well established canon of construction and I'll come back to that. His Honour said this:

PN124

The clause relied upon by Qantas to vary an individual's hours is not confined in its terms to full time employees.

PN125

We disagree with that, with respect, for the reasons I have identified and his Honour therefore interpreted 28.4.3 as applying in broad terms to part time employees as full time employees. At paragraph 23 when his Honour was dealing with the subsidiary question his Honour dealt with the alternative argument I put today, that is, if 28.4.3 does apply it doesn't allow changes to ordinary hours of work. His Honour said this:

PN126

In my view the subclauses should be read as referable to collective changes which were usually of an ongoing nature on the one hand.

PN127

That's (b) -

PN128

And individual changes which usually be of a one off nature on the nature.

PN129

Subclause (c) -

PN130

The latter proper change includes a change to a starting and finishing time, or the length of shift for a particular employee. I do not consider that subclause (c) ...(reads)... no basis for reading the other clause in such a way.

PN131

We say, with respect, that turns the correct approach on its head. That is, what his Honour did not, with respect, identify is what was the language in the clause which permitted in fact what his Honour described there. That is, it's almost as if there was an onus of proof on us to demonstrate that something was excluded rather than finding whether the fact the text of that clause supported the conclusions which his Honour stated there and we say that for the reasons I have identified there's nothing in the clause to support the notion that it involves changes to the quantum of hours of work.

PN132

JUSTICE GIUDICE: Mr Hatcher, if 28.4.3 as you suggested is limited to - or on your alternative construction, I think it's not your primary argument, is limited to the effect on starting and finishing times, that you can alter starting and finishing times, if that's the case then wouldn't it be a consistent reading of the relevant part of clause 18 that that only deals with the length of the shift, so 28.4.3 might permit changes in starting and finishing times of part time employees but because of the particular reference to shift lengths couldn't alter shift lengths other than in - well, it simply wouldn't have any effect because clause 18 deals exclusively with the question of changes in shift length?

PN133

MR HATCHER: There's no necessary link between commencing and finishing times and shift lengths. That is, a shift might just simply be relied to be worked at a different time of day.

PN134

JUSTICE GIUDICE: Yes.

PN135

MR HATCHER: And absent support of a texted provision, there is no reason to assume why the clause would permit that, your Honour. I have already identified 28.4.3(a) as identifying the purpose; that is, commencing and finishing times.

PN136

JUSTICE GIUDICE: Yes.

PN137

MR HATCHER: Absent some expression used in the clause which talks about effects on the shift lengths or ordinary hours there is no reason at all to make an assumption that those matters are encompassed by the clause. If anything, our interpretation at least as to the alternative submission is more closely based on a literal reading of the words than what his Honour did.

PN138

JUSTICE GIUDICE: Yes.

PN139

MR HATCHER: His Honour assumed something which simply isn't there.

PN140

JUSTICE GIUDICE: I don't want to put words into your mouth and so I'll just be cautious about this, but would you accept that under those circumstances 28.4.3 would permit Qantas to apply the provisions of that subclause to part timers to alter starting and finishing times, provided that it couldn't alter shift lengths except by agreement?

PN141

MR HATCHER: Yes. That's our alternative argument. I mean our primary argument is the part time clause is the way in which these things are dealt with.

PN142

JUSTICE GIUDICE: Yes. It just doesn't apply at all?

PN143

MR HATCHER: It doesn't apply at all.

PN144

JUSTICE GIUDICE: Yes.

PN145

MR HATCHER: If we're wrong about that, well, then it shouldn't be read to apply beyond what the text says it does.

PN146

JUSTICE GIUDICE: Yes.

PN147

MR HATCHER: And again, we repeat the proposition that having regard to the industrial concept of part time employment you wouldn’t read the clause to, as it were, radically depart from that concept such as make part time as some sort of quasi casual, unless there were express words in the provision which permitted that and those words simply aren't there, with respect. I referred earlier to some well canons of statutory interpretation which we say would be applicable to an instrument such as this. Firstly, this may be to a certain extent be a little trite, but can I hand up an extract Pearce and Geddes on statutory interpretation. This is from the sixth edition dealing with the maxim generalia specialiabus non derogant.

PN148

The extract begins at paragraph 4.3.2 on page 144 of the edition. I think I can just refer to the opening passage which says:

PN149

The principle provisions of general application give way to specific provisions when in conflict is discussed fully ...(reads)... same subject as is dealt with specifically.

PN150

And then if one goes over the page, at about point 5, the paragraph beginning at about point 5 the learned authors say this:

PN151

But the general law set out in 2.2.2 that where possible words and action be given effect must not be overlooked, the generalia ...(reads)... as a matter of ordinary interpretation.

PN152

Now, we say that's the case here, that is, where one has - perhaps I should withdraw that. To the extent that clause 28.4.3 can be read at all as allowing changes in ordinary hours, we say it doesn't, but to the extent it could be read as that it clearly comes into conflict with, we say, the provisions in 18.5, particularly 18.5.8 which require consent. That is, there's a textual conflict between consent being required on the one hand and the employee being able act unilaterally by way of notice on the other hand. We say the maximum therefore can apply. Going back to the extract, in the last paragraph on page 145 the learned authors went on to say this:

PN153

What is said in some cases the particular application of the principle underlying the generalia specialibus approach as we ...(reads)... expressum facit cessare tacitum approach.

PN154

Now, I've extracted the two cases which most clearly set out that principle. The first is Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union and second, perhaps I'll hand these up together, is The King v Wallace and Another. In the Anthony Hordern case the relevant extract is from the Duffy CJ and Dixon J at page 7, at about point 5 on the page their Honours said this:

PN155

Extensive and unfettered as the authority of the Court of Conciliation and Arbitration ...(reads)... which might otherwise have been relied upon for the same power.

PN156

And similarly in Wallace v The King this Dixon J at page 550, the first full paragraph on that page, in the second sentence his Honour said this:

PN157

If it confers a specific power with respect to a limit and subject ...(reads)... the same matter might have been applied or covered by the general authority given by section 38 -

PN158

And his Honour refers to the expressum facit cessare tacitum maxim. So to the extent that 28.4.3 might be said in a general way to give authority for Qantas to extend hours even against our submissions we say that it would be ousted by specific provisions concerning extension of hours in clause 18.5 which are confined by the restriction that consent of the employee is required. That's all I have to say about the primary issue. As I've indicated, there is a subsidiary issue and it's the issue that's identified in the second determination sought by my client below as set out in paragraph 10 of his Honour's judgment at page 6 of the appeal book.

PN159

That is, my client sought a determination that Qantas cannot compulsorily change a full time employee's roster at least with seven days notice unless there is agreement between Qantas and the majority of employees in the area concerned. This point deals with the interaction of clause 28.4.3, paragraph (b), as distinct from clause 28.4.3 paragraph (c). I think I can deal with this most swiftly by referring to again to what his Honour found which I touched on this before, it's at paragraph 23 of the judgment. Perhaps I should start with paragraph 21. His Honour said this:

PN160

In my view a change to a shift work roster as referred to in subclause (b) refers to the general rosters applying to ...(reads)... in the event the requisite notice is not given.

PN161

And therefore in effect his Honour found that the seven days notice requirement absent collective agreement applied to the - or required seven days notice under (b) and what his Honour referred to as the individual roster change, required two days notice under (c). Now, just turning to the clauses, we say with the greatest of respect that analysis is simply not reported by the language of the clauses. That is, this notion that (b) deals with some collective roster change and that (c) refers to an individual roster change, is not something that's identified, with respect, by the text of the provisions.

PN162

It can be seen for example in paragraph (c) that any change would involve the change to an individual's roster and two days notice would be required. That is, the way in which his Honour distinguishes between the two provisions is simply unsupported by the text of the provision. We would say it should be interpreted this way, we say (c) supplements (b). We say (b) creates two scenarios, (1), either seven days notice upon the employer unilaterally deciding to change rosters and (2), change by agreement between Qantas and the majority of employees. We say that the seven days notice is to apply where Qantas unilaterally decides, but we say that where it's varied by agreement that is where (c) operates.

PN163

That is, where there's a variation by agreement between Qantas and the majority of employees and that agreed variation operates to affect individuals and then (c) supplements that to provide that two days notice be given. If that interpretation is not adopted it leads to some anomalous and we would say, with respect, unfair results. For example, if a roster change is agreed to between Qantas and the majority of employees, on the interpretation adopted in the decision of his Honour no notice is required to employees affected and they might be employees who didn't agree with the roster change and who were in the minority. They may be the only employees affected by the roster change.

PN164

That, with respect, can't have been intended, that is that absent the seven days notice being given the alternative with agreement is no notice. We say the function of (c) is to pick up that situation by saying that where the seven days notice scenario does not apply, two days notice is to be given to any employees affected by a roster change which will necessary be a roster change determined by agreement and we say that would allow the two clauses to work harmonious - - -

PN165

DEPUTY PRESIDENT IVES: So in other words, where the employees have already agreed to forego this seven days notice as in 28.4.3, when that circumstance applies then you say that 28.4.3(c) cuts in and an employee is then given two days notice?

PN166

MR HATCHER: I think I can adopted that, your Honour, with this qualification, that we don't say that - we wouldn't characterise that the employees agreed to forego the seven days notice. The distinctions between where Qantas says, look, we want this roster change, here it is, it's the operation of seven days, that is, by managerial fiat, as distinct from some negotiated agreement whereby Qantas and employees in the area, at least by majority, agree that this is going to be the roster change and we say that where that operates, that is, where the seven days doesn't operate, (c) operates to ensure that any employee affected, whether they're in the majority or the minority, will get two days notice.

PN167

DEPUTY PRESIDENT IVES: But that doesn't that boil down to the same thing?

PN168

MR HATCHER: It does, it does.

PN169

DEPUTY PRESIDENT IVES: I mean the employees are in foregoing the - - -

PN170

MR HATCHER: As I said, your Honour, subject to that minor qualification, I accept that you have raised that proposition.

PN171

DEPUTY PRESIDENT IVES: Yes.

PN172

MR HATCHER: And perhaps I'm repeating myself, but otherwise it means that agreed rosters can be produced without any notice to employees who have may not have agreed to it, which would be an anomalous result. So they're the matters I wish to put. Can I just briefly touch upon the issue of leave to appeal, I don't have much to add as to what was set out in the appeal notice. We say firstly that the matters we've raised on appeal are arguable. That is, that there is sufficient doubt arising from the decision such as to merit the reconsideration of the matters determined by a Full Bench.

PN173

Secondly, we say that if the decision of his Honour is incorrect then it's something that would cause substantial inconvenience, even injustice to employees affected, particularly with respect to the part time employees. And thirdly, we say that the general importance of the interpretation issue here to the concept of part time employment is one of some wider relevance which would attract the ground of leave to appeal.

PN174

JUSTICE GIUDICE: Yes. Mr Hatcher, paragraph 10 of the Vice President's decision sets out the two determinations that were sought. Is that still the case? I was particularly wondering about the first of those determinations.

PN175

MR HATCHER: Yes, your Honour is right to point that out. The proposition I think we've tried to advance would not involve the use of the words, "with less than seven days notice". That is, the primary position we advance is that you can't do it without agreement.

PN176

JUSTICE GIUDICE: Because?

PN177

MR HATCHER: Either because 18.4.8 is the sole mechanism by which it may be done and that requires agreement in oust, 28.4.3 entirely, or alternatively 28.4.3 does not deal with increasing employees hours.

PN178

JUSTICE GIUDICE: Thank you. Mr O'Grady.

PN179

MR O'GRADY: Thank you, your Honour. Your Honour, can I hand up an outline of submissions. Your Honour will see that it's - or your Honours and Commissioner will see that it's very much based on the submissions that were put below before the Vice President. Can I state at the outset that the position of Qantas is that the question before the Full Bench is not what was the intention of the award maker when clause 28.4.3 was originally drafted but rather what was the intention of the parties ascertained objectively when they decided to incorporate it into EBAVI and in my submission that may well or it does give rise to very different considerations to those that my learned friend addressed you on in the course of submissions.

PN180

We have here an enterprise agreement which on its face purports to be a comprehensive agreement that replaces all other awards and agreements and that appears in clause 6 of the EBA which I have set out for the convenience of the Full Bench in paragraph 3 and in my submission when one looks at clause 18 there is no warrant for assuming that parties to the certified agreement did not intend that part time employees would not be subject to the regime set out in clause 28. Indeed clause 18 in its terms sets out what modifications are to be made to other parts of the enterprise agreement which such modifications are seen as necessary. For example, clause 18.5.11 deals with the issue of how annual leave is to be accrued in respect to part time employees.

PN181

18.5.12 deals with long service leave. 18.5.14 provides that 20th days do not apply to part time employees. Now, there is nothing in the regime created by clause 18.5 in my submission that suggests that what appears in clause 28 is not to apply in its entirety to part time employees and - - -

PN182

DEPUTY PRESIDENT IVES: Mr O'Grady, sorry to interrupt you so early.

PN183

MR O'GRADY: Yes, your Honour.

PN184

DEPUTY PRESIDENT IVES: But isn't it the case though that in your interpretation 18.5.3 would only have the effect of allowing an employee to forego double time?

PN185

MR O'GRADY: Sorry, 18.5.8?

PN186

DEPUTY PRESIDENT IVES: 18.5.8.

PN187

MR O'GRADY: Yes, your Honour.

PN188

DEPUTY PRESIDENT IVES: The only effect of that clause in your interpretation would be to allow an employee to forego double time.

PN189

MR O'GRADY: Well, no, your Honour.

PN190

DEPUTY PRESIDENT IVES: In essence by agreeing to have the shift extended because the ability to extend the shift you say is there anyway.

PN191

MR O'GRADY: Yes, your Honour, subject to an important temporal limitation, namely, that there be two days notice of the extension and/or the roster
change - - -

PN192

DEPUTY PRESIDENT IVES: Or the payment of double time.

PN193

MR O'GRADY: Yes, your Honour.

PN194

DEPUTY PRESIDENT IVES: So therefore the effect of 18.5.8 then would be that the employee would be able to forego that double time if he or she agreed?

PN195

MR O'GRADY: Well, no, your Honour, with respect. In my submission there are, and this I think is one of the more fundamental issues raised in the appeal, there are limitations on the two mechanisms available to increase the length of hours worked by a part time employee. 18.5.8 imposes one limitation, namely, that there be agreement. 28.4.3 imposes another and different limitation, namely, that there be two days notice, and it's not open under 28.4.3(c) to require an employee to work longer hours unless that two days notice is provided to the employer or there is the payment of the penalties that you've identified.

PN196

So in my submission the two address different problems, if I can put it in those terms.

PN197

DEPUTY PRESIDENT IVES: Well, I can't quite see the distinction you're making because it seems to me that in either case the ability to require exists. The only difference is that a requirement inside the two day period will attract a penalty.

PN198

MR O'GRADY: Yes.

PN199

DEPUTY PRESIDENT IVES: A requirement outside the two day period won't attract a penalty and if that's the case the only effect that 18.5.8 could have is by the employee agreeing that you can extend and thereby foregoing double time which would seem a very odd set of circumstances.

PN200

MR O'GRADY: Well, the employee may not be required to work the extra time if he does not wish to work the extra time. If there is no agreement provided by 18.5.8 the employee may not work longer than the hours that were already put in place in respect of him. The employee may wish to avail himself of the extra work that may be available so in my submission it's wrong to characterise the function of 18.5.8 as in effect being only there to enable an employee to surrender an entitlement to double time. Rather it's a facilitative provision that enables agreement to be reached for an employee to take up extra hours that may be available, up to the maximum of 7.6 hours per day.

PN201

DEPUTY PRESIDENT IVES: The word require in the way I read it,
Mr O'Grady, is that it provides a right to the employer to demand that the change occurs and if that's right the only things that then apply are the timeframe, the temporal requirement which says that you will change either with the requisite notice and therefore not attract a penalty or you will change without the requisite notice and attract the penalty.

PN202

MR O'GRADY: Yes, your Honour.

PN203

DEPUTY PRESIDENT IVES: You seem to be putting to me that the employee has some choice in all of this. The employee doesn't appear to me under the terms of 28.4.3(c) to have a choice in any of it as to whether or not he or she will work.

PN204

MR O'GRADY: No, I accept that, your Honour.

PN205

DEPUTY PRESIDENT IVES: Yes. So then it comes back to the original proposition I put to you.

PN206

MR O'GRADY: Well, if there was a roster change of the type contemplated by 28.4.3(c) then your Honour is correct that the only effect of 18.5.8 is for the employee to in effect forego the penalty rates that would otherwise be payable if the requisite notice wasn't provided.

PN207

DEPUTY PRESIDENT IVES: And if that's right, that seems to me to be an extremely odd provision. In other words, an employer comes along and says, well, there's not the requisite notice here, do you agree to take single time rather than double time.

PN208

MR O'GRADY: Well, as I tried to indicate earlier, in my submission they are different mechanisms designed with their own self contained limitations. One way in which the employer might approach this issue is to go to employees and day look, we need more people to work on a particular day because we've got extra claims coming in, does anybody want to take up that work. If they do so then 18.5.8 would apply. Another alternative mechanism that is contemplated by the award or by the certified agreement is that set out in 28.4.3(c) where either the temporal limitation has to be complied with, namely the two days notice has to be provided, or alternatively, there is the provision for penalties to be paid in that case.

PN209

Now, it may be that if the employer sought to avail itself of that second mechanism the employees would be unlikely to reach agreement of the type provided for or contemplated by 18.5.8.

PN210

DEPUTY PRESIDENT IVES: I think that it would probably go beyond unlikely, Mr O'Grady.

PN211

MR O'GRADY: I don't differ with your Honour. But in my submission that's not a reason for saying that clause 28.4.3(c) has to be read down in a way contended for by the appellant because they are in my submission different mechanisms designed to - that are capable of achieving the same end which the employer may avail itself of as it sees fit and there are different limitations imposed with respect to those two alternative mechanism. We come back of course to the primary position, your Honour, which is if the parties had have intended to impose the type of limitation on the operation of 28.4.3(c) that my learned friend is arguing for, they could have said so.

PN212

They have indicated, as my learned friend noted in his submission, limitations with respect to other classes of employees concerning the operation of clause 28.4.3.

PN213

JUSTICE GIUDICE: I think that's a little bit harsh, isn't it, Mr O'Grady? The hours of work provision itself in terms doesn't apply to part timers at all. I mean you can't say that this is a model of drafting to put the two arrangements together, can you?

PN214

MR O'GRADY: No, I accept that, your Honour, and I accept what my friend says about the application of the Kucks principle to interpreting these types of instruments and that of course was the approach adopted by his Honour below. But I do rely upon the fact that in clause 18.9.6(b) the drafters of this agreement have perceived that there is a problem regarding the operation of clause 28.4.3 and relief employees and have dealt with that problem expressly and of course the position is that my learned friend is not putting to the Full Bench that clause 28 doesn't apply to part time employees. Indeed it was conceded below that parts of clause 28 do apply to part time employees and the transcript reference appears in the outline of submissions that I have provided to the Full Bench.

PN215

What my learned friend says is, well look, we like some bits including the bits concerning penalties and all of that and indeed seems to acknowledge that they're necessary that those bits have application to part time employees, but we don't like 28.4.3 and therefore we say that shouldn't apply and in my submission there is absolutely no warrant in the language used in the clause for differentiating between various parts of the clause.

PN216

JUSTICE GIUDICE: Mr O'Grady, can I ask you some questions about 18.5.8?

PN217

MR O'GRADY: Yes, your Honour.

PN218

JUSTICE GIUDICE: Firstly the issue of the words on the day.

PN219

MR O'GRADY: Yes.

PN220

JUSTICE GIUDICE: What do you say they mean?

PN221

MR O'GRADY: Well, your Honour, I am instructed that this matter has been considered by I think Commissioner Lawson and inquiries have been made to see if we can obtain that decision. We haven't been able to obtain at this point in time and if we haven't obtained by the time I've finished my submissions to the Full Bench I might ask for leave to provide a copy to the Full Bench at the conclusion of the case. But it's my understanding that that decision is to the effect that on the day deals with the agreement rather than the operational and commercial requirements, but I haven't been able to look at that decision so I can't take that any further as far as what the decision said.

PN222

JUSTICE GIUDICE: But do you have a submission about how we should construe it?

PN223

MR O'GRADY: Yes. Well, in my submission it isn't confined to agreements that occur on the - - -

PN224

JUSTICE GIUDICE: The day of the extension.

PN225

MR O'GRADY: On the day of the extension.

PN226

JUSTICE GIUDICE: So it could be an agreement some time before but in contemplation of the operational requirements on a particular day?

PN227

MR O'GRADY: Sorry, your Honour, I might be being corrected on it. If you'll excuse me, your Honour?

PN228

JUSTICE GIUDICE: Yes.

PN229

MR O'GRADY: Sorry, your Honour. I am instructed as far as the operations in Melbourne are concerned the way in which the clause works is that if there is a requirement for extra hours to be worked on a particular day then the employees will be approached and asked whether they are prepared to work those hours on that particular day. If it looks like there might have to be extra hours worked on a subsequent day or a day some time into the future the provisions of clause 28.3 are availed of.

PN230

DEPUTY PRESIDENT IVES: So if in the instances where if that's the case to come back to my question to Mr Hatcher right in the early stages of his submissions, currently, Mr O'Grady, then if an employee is approached on a particular day about particular operational or commercial requirements on that day and agrees to have their hours extended up to the 7.6, they would be paid single time?

PN231

MR O'GRADY: Yes, your Honour.

PN232

DEPUTY PRESIDENT IVES: That's what happens now?

PN233

MR O'GRADY: Yes, yes, and they avail themselves of the extra work.

PN234

DEPUTY PRESIDENT IVES: And in the event that they don't agree then the employer would presumably avail themselves of 28.4.3 and pay them double time?

PN235

MR O'GRADY: Well, my understanding, your Honour, is that the employer only avails itself of 28.4.3 - sorry, your Honour. Sorry, your Honour, I apologise.

PN236

JUSTICE GIUDICE: Yes.

PN237

MR O'GRADY: Your Honour, my instructions are that the practice would be that if an individual employee didn't wish to take up the offer of extra employment other part time employees would be asked whether they wished to. If nobody else wanted to take up the extra employment and as I understand it this hasn't happened, the option of offering the full timers overtime would be considered, but I don't think I can take it any further than that. On my instructions this is not something that has had to be confronted. My understanding is that my client hasn't then sought to date, hasn't then sought to go and avail itself of the provision in clause 28.4.3.

PN238

DEPUTY PRESIDENT IVES: But in your submission there would be nothing to prevent them from doing that?

PN239

MR O'GRADY: Subject of course to the overtime payments that would be - sorry, the penalties that - - -

PN240

DEPUTY PRESIDENT IVES: It allows for a penalty payment.

PN241

MR O'GRADY: Yes.

PN242

DEPUTY PRESIDENT IVES: So there would be nothing to prevent them requiring it subject to the payment of the penalty?

PN243

MR O'GRADY: That's the position.

PN244

DEPUTY PRESIDENT IVES: Yes, thank you.

PN245

JUSTICE GIUDICE: And the reference in 18.5.8 to a maximum of 7.6 hours, does that prevail over any provisions in 28.4.3?

PN246

MR O'GRADY: Well, your Honour - - -

PN247

JUSTICE GIUDICE: Or is it not in conflict?

PN248

MR O'GRADY: Well, the way I'd put it, your Honour, is that it's not in conflict and that one doesn't get to 28.4.3 if there has been an agreement of the type that clause 18.5.8 contemplates. And there of course provisions for overtime for work worked in excess of 7.6 hours and 18.5.9 deals with that issue.

PN249

JUSTICE GIUDICE: We may be getting a little bit tied up here in failing to distinguish between what the practice is and what the agreement provides.

PN250

MR O'GRADY: Yes, your Honour.

PN251

JUSTICE GIUDICE: I'm really trying to elicit your construction about how these provisions work together rather than what might or might not happen on a particular day and I appreciate that some other questions have been about that so I'm not being critical.

PN252

MR O'GRADY: Yes, your Honour.

PN253

JUSTICE GIUDICE: But I'm just trying to focus on how these things do fit together. On one view of it 18.5.8, as I think I put to Mr Hatcher, deals with length of shifts.

PN254

MR O'GRADY: Yes.

PN255

JUSTICE GIUDICE: And provides the exclusive mechanism for the variation of shift lengths and indeed prescribes a maximum shift length of 7.6 hours. Now, I take it you don't agree with that?

PN256

MR O'GRADY: Sorry, your Honour, I misunderstood what your Honour was saying.

PN257

JUSTICE GIUDICE: Yes.

PN258

MR O'GRADY: So is your Honour's question whether or not it would be open for my client under 28.4.3(c) to impose a shift length of greater than 7.6 hours without overtime being payable?

PN259

JUSTICE GIUDICE: Well, just a greater - I'm not worried about the overtime for the moment but the greater shift length.

PN260

MR O'GRADY: Sorry, your Honour, if I could just obtain instructions?

PN261

JUSTICE GIUDICE: Yes.

PN262

MR O'GRADY: Your Honour, my submission is that it would be open to my client to have a shift length of greater than 28.4.3 - sorry, greater than 7.6 hours.

PN263

JUSTICE GIUDICE: Yes.

PN264

MR O'GRADY: Using the mechanism in clause 28.4.3(c). There is of course a limit on the number of hours that can be worked in a particular week and that's dealt with in 18.5.2 and we would say that limitation applies.

PN265

JUSTICE GIUDICE: 30?

PN266

MR O'GRADY: Yes.

PN267

JUSTICE GIUDICE: But why would the weekly limit apply and not the daily limit?

PN268

MR O'GRADY: Well, the weekly limit of course, your Honour, is a mechanism that gives rise to conversion from part time employment to full time employment.

PN269

JUSTICE GIUDICE: Yes.

PN270

MR O'GRADY: And so that's the regulating mechanism, your Honour. If my client was to avail itself of the mechanism in 28.4.3 to regularly require people to work more than or on average more than 30 hours per week, then the provisions in 18.5.2 would operate and the employer would become full time.

PN271

JUSTICE GIUDICE: So does it boil down to this, that your client's construction of these provisions is that 18.5.8 and 28.4.3 both provide methods of altering the hours of part timers?

PN272

MR O'GRADY: Yes, your Honour.

PN273

JUSTICE GIUDICE: And the employer can choose one or the other?

PN274

MR O'GRADY: Yes, depending on the circumstances and they have different limitations contained within them. On one there has to be agreement, with respect to the other there either has to be the payment of penalties or the time limit that's provided for in the clause itself and in my submission there is nothing inconsistent with the agreement providing for those two alternative clauses to be pursued depending on the circumstances that arise.

PN275

JUSTICE GIUDICE: Well, one might have expected one of them to be prefaced with the words notwithstanding the provisions of - - -

PN276

MR O'GRADY: Your Honour has already made the observation about the ..... of the drafting.

PN277

JUSTICE GIUDICE: Yes. I suppose that's why we're all here.

PN278

MR O'GRADY: And your Honour, I do come back to the point I made in respect of 18.9.6(b) because that is an example of the drafting of the agreement saying, well, this is going to cause some problems, that the potential application of 28.4.3 is going to cause problems in respect of relief employment, we are not going to allow that provision to apply in respect of that category of employees. Now, they haven't done so with respect to part time employees. Your Honours, if I can take you to paragraph 6 of the outline, and Commissioner, if I can take you to paragraph 6 of the outline that I've provided. We set out what we say the work of clause 18.5 is to do and I've addressed the transition mechanism to your Honour the President a moment ago.

PN279

In paragraph 8 we say that the effect of 18.5 is to set minimum hours for employees and of course that becomes important in the context of 18.5.6 that guarantees that they will be paid for the minimum hours that they've been rostered and then in 18.5.8 we deal with the extension of part time employees shifts and I've already informed the Full Bench as to what the practice is with respect to that. I understand that something was provided to my learned instructor. I apologise, your Honour, we don't have the decision I referred to earlier.

PN280

In paragraph 10 we make the point that unless the general provisions of clause 28 are applied to part time employees there is a significant gap in the regime governing shift workers, or shift work undertaken by part time employees and as I've already submitted to the Full Bench, in my submission there's no warrant for picking and choosing between the various provisions of clause 28 in the language that appears in the clause itself. In paragraph 13 I deal with what I understand to be the subsidiary submission made by my learned friend regarding the operation of 28.4.3(b) and 28.4.3(c). As I've indicated in the provisions of the certified agreement which I've set out at paragraph 5 of the outline, there is of course a significant difference in the language that appears between the two subclauses of 28.4.3.

PN281

One is in my submission clearly directed to the collective, the employees pool is used. There's reference to agreement concerning the majority of employees. 28.4.3(c) of course is directed to an individual or where that individual is required to change his or her roster. Picking up your Honour the learned President's point, it would be surprising if the drafters of these provisions had intended that clause 28.4.3(c) would have the limited operation that my learned friend refers to without providing some indication that its operation was confined to the circumstance set out in 28.4.3(b) and as I understand it that's what my learned friend suggests, that that's the only role of that clause, that where there has been an agreement then before that agreement can be implemented in respect of an individual employee, that individual employee has to be provided with two days notice.

PN282

Now, in my submission there's nothing in the clause itself that suggests that it is to be confined in that way. It is capable of operating in its own terms in the way it has been submitted by Qantas below and as submitted in the outline and in my submission it shouldn't be limited without some clear indication. As my learned friend acknowledges, these are some provision of longstanding and it was a series of clauses that were imported from the award as a unit. So one would have thought if there was to be such a limitation that would have been made express. In paragraphs 14 and following I've set out a number of principles in respect of interpreting agreements. I don't understand there to be much controversy regarding those principles.

PN283

Our position of course is that the task of interpretation is to objectively determine the intention of the parties from the words used and here of course there is no express limitation of the type - limitation of the clauses in question that would support the construction advanced on behalf of the appellant. Can I turn briefly to the authorities referred to by my learned friend regarding the construction based upon the specific and general. The point I would seek to make in respect of those authorities is that as I've already submitted to the Full Bench, there are specific limitations or there are limitations found within both clauses or both mechanisms for the altering of length of hours of part time employees.

PN284

This is not a case where one has a general power to do something and then a specific power applied into a particular class of employees which has its own set of limitations and therefore recourse to the general power might be precluded because of those specific limitations. In my submission what we have here is two alternative mechanisms each containing their own limitations and one mechanism may be more appropriate in one particular set of circumstances and another mechanism may be appropriate in another circumstance. But there is on warrant for reading down 28.4.3 by reference to the existence of the alternative mechanism.

PN285

It's not in my submission a case of 18.5.8 in effect covering the field or providing a code with respect to the issue of extending the length of hours that an employee works. Rather, it's a case of that provision dealing with a particular way in which hours might be increased where they're being within the same agreement an alternative mechanism with its own substantive limitations.

PN286

JUSTICE GIUDICE: But there's no other provision in the agreement which deals specifically with shift lengths for part timers, is there?

PN287

MR O'GRADY: No, no, your Honour. But as - no, that's the case, your Honour. Of course the language in 28.4.3(c) is in my submission broad.

PN288

JUSTICE GIUDICE: It's general.

PN289

MR O'GRADY: Sorry?

PN290

JUSTICE GIUDICE: It's general.

PN291

MR O'GRADY: Well, it is general but in my submission it talks about the change of a roster. Now, that language is capable of encompassing a change in shift length.

PN292

JUSTICE GIUDICE: Yes.

PN293

MR O'GRADY: It's not a question of simply changing shifts, which was I think the language adopted by my learned friend in his submission.

PN294

JUSTICE GIUDICE: The two things are bound up together. The idea is starting and finishing times and length of the shift are bound up together.

PN295

MR O'GRADY: Yes, yes, your Honour, and - - -

PN296

JUSTICE GIUDICE: It may be artificial to say that one excludes the other.

PN297

MR O'GRADY: Yes, your Honour, and in my submission there is nothing in the language used in 28.4.3 that makes it incapable of a sensible application in respect of part time employees who might have the length of a particular shift altered.

PN298

DEPUTY PRESIDENT IVES: But it does though in your submission overrode the requirement in 18.5.8 for agreement.

PN299

MR O'GRADY: Well, your Honour, you put it in terms of overriding, in my submission there are alternative mechanisms that can be availed of to achieve to what may turn out to be the same end, that's it not, if you like, a matter of one overriding the other or one not having work to do if the other has its full operation. Rather, there are alternative courses that can be pursued, depending on the circumstances of the case.

PN300

JUSTICE GIUDICE: It's a bit hard to say that on your construction if an employee doesn't agree the employer, whether they would or not, the employer has the right under the provision to insist.

PN301

MR O'GRADY: The employer ultimately could insist, your Honour.

PN302

JUSTICE GIUDICE: But that would overrode the requirement for agreement, wouldn't it?

PN303

MR O'GRADY: But your Honour, in my submission that ignores the operation of 18.5.8 prior to the employer getting to that point in time because as is consistent with the practice that I have outlined to the Full Bench, the employer may go to other employees.

PN304

DEPUTY PRESIDENT IVES: That would get back to my point that I was making to you initially, Mr O'Grady, and that would be that the only purpose that would be served by the agreement is the purpose of foregoing double time.

PN305

MR O'GRADY: And in my submission that's not the correct characterisation because there may well be employees who wish to avail themselves of the extra work that's been provided at ordinary time rates for a number of reasons, not just the extra income that would be earned, but also the opportunity to increase the average number of hours worked by an employee for potential conversion into full time work. So in my submission it would be wrong to approach the construction of these provisions on the basis that in effect my client would automatically, and indeed would have no other option but to avail itself of the provisions of 28.4.3 if an individual employee said look, I don't want to take up this extra work because there may well be -well I'm not sure whether it's on the evidence, on my instructions the practice is that other employees are asked in respect of whether they wish to take it up and they haven't had to avail themselves and hadn't sought to avail themselves of 28.4.3 other than when dealing with changes that are greater than two days away.

PN306

Sorry, excuse me. Just bear with me. In response to your Honour Deputy President Ives's question regarding the way in which Qantas understands this clause, that was dealt with in the transcript, if I can simply direct your attention to paragraphs 136 to 139 of the transcript, the cross-examination of Ms Robinson. There was some confusion it would appear in Ms Robinson's understanding of the question that was being put to her but she indicates what she understands to be the position regarding what could be done. Sorry, it's paragraph 136 to 139. I have already made the submission that we see the two clauses being directed to different things, change based upon an agreement as an alternative or alternatively a unilateral change upon notice and as I've indicated, in my submission there's nothing inconsistent with those alternative mechanisms being available.

PN307

Unless there are any questions, those are the submissions we seek to put.

PN308

JUSTICE GIUDICE: Mr O'Grady, the other question about the operation of 28.4.3(c) was whether it's dependent on - its operation is dependent on there having been agreement by majority of employees.

PN309

MR O'GRADY: Yes, your Honour, I touched on that earlier. Your Honour, my submission is that that would be to provide 28.4.3(c) with a very limited operation and there's no indication in the text that it's intended to have that limited operation. It's not stated to be subject to 28.4.3(b) and in that regard I note that these provisions have been imported as a group from the award. One would have thought if 28.4.3(c) was intended to be subject to it or upon agreement of the type contemplated in 28.4.3(b) then the author may have provided some indication to that. In my submission 28.4.3(c) is in its terms capable of independent operation and it has work to do because 28.4.3(b) is clearly couched in terms addressed to the collective.

PN310

DEPUTY PRESIDENT IVES: So when does the collective occur, when you've got how many employees does it take to make a collective?

PN311

MR O'GRADY: Well, you have the majority of employees.

PN312

DEPUTY PRESIDENT IVES: No, what I’m saying is you're saying that 28.4.3(b) applies when there is a decision to change rosters plural for employees.

PN313

MR O'GRADY: Yes.

PN314

DEPUTY PRESIDENT IVES: I wonder when you say that cuts in. Does it cut in for two employees or three employees, or does it take the entirety of the employees on the roster and how do you arrive at whatever it is you say that collective is?

PN315

JUSTICE GIUDICE: The area concerned is the expression it uses.

PN316

MR O'GRADY: Sorry, your Honour, if I could just - well, in my submission, and this was dealt with in the evidence, your Honour, at I think it's appeal book page 62, at paragraph 19 of the statement of Ms Robinson where she says:

PN317

28.4.3(b) of the EBA seeks to applies to roster changes that affect the pattern of rosters worked ...(reads)... are reviewed and often substantially changed.

PN318

And she gives the circumstances where that might occur and she says:

PN319

When these events prompt changes to multiple rosters either seven days notice is given or agreement between Qantas and the majority of employees in the area is concerned is obtained.

PN320

So it would appear from that evidence that the function of 28.4.3(b) is to deal with a change to the rosters of an identifiable group of employees whereby they are either asked to agree to that change or that change is imposed upon the seven days notice. 28.4.3(c) has a very different function to that, it focuses on the individual change to an individual's roster and the different period of notice is required.

PN321

DEPUTY PRESIDENT IVES: So all bar one employee of a group, of identifiable group would revert back to 28.4.3(c) in your submission?

PN322

MR O'GRADY: Well, in my submission if you were seeking to change the rosters for the identifiable group then you would use the mechanism - - -

PN323

DEPUTY PRESIDENT IVES: No, what I'm saying is if you don't want to change the rosters for the entirety of the group, you want to change them for the entirety of the group bar one, then in your submission you would utilise the requirement of 28.4.3(c)?

PN324

MR O'GRADY: Your Honour, I don't know that the evidence goes to that. It seems to suggest that if the roster was to be changed for the group one would avail itself of 28.4.3(b).

PN325

DEPUTY PRESIDENT IVES: I was merely asking you a question about your submissions, Mr O'Grady. I think you said that it would appear on the evidence that you a definable group before 28.4.3(b) would be utilised. So absent that definable group by the taking away of one employee who you want to keep the same, then you would have to rely on 28.4.3(c)?

PN326

MR O'GRADY: Well, your Honour, in my submission 28.4.3(c) is not confined to the changing of the roster of one individual and only one individual.

PN327

DEPUTY PRESIDENT IVES: No.

PN328

MR O'GRADY: You could approach a number of individuals as individuals.

PN329

DEPUTY PRESIDENT IVES: Exactly the point I’m making.

PN330

MR O'GRADY: Yes, your Honour. You could approach a number of individuals as individuals and avail yourself of the mechanism - - -

PN331

DEPUTY PRESIDENT IVES: In fact you could do that on your submission to every employee bar one in the definable group? So you could approach individually her 28.4.3(c) and only have to provide two days notice of a change as long as you didn't do it to the entirety of the group because then in your submission you would have to apply seven days unless you got an agreement with that group?

PN332

MR O'GRADY: Your Honour, if you availed yourself of 28.4.3(c) in a way that undermined the mechanism that is set out in 28.4.3(b), there would be difficulties with that approach but I'm not saying, your Honour, that 28.4.3(c) is confined to the changing of an individual's roster as an individual. But 28.4.3(b) does seem to contemplate a broad roster change across the class and in my submission if one was to apply 28.4.3(c) in a way that undermined that mechanism there may well be some scope for the submission put by my learned friend that you have a specific provision that shouldn't be, if you like, undermined or circumvented through the mechanism set out in 28.4.3(c). Now, that of course isn't - - -

PN333

DEPUTY PRESIDENT IVES: I note that 28.4.3(b) says nothing about definable groups in any event.

PN334

MR O'GRADY: Well, it doesn't, your Honour, but it does speak of the employees and the majority of employees in the area concerned and in my submission that language connotes that we are talking about a definable group. If the Full Bench pleases.

PN335

JUSTICE GIUDICE: Thank you, Mr O'Grady. Mr Hatcher.

PN336

MR HATCHER: Qantas says that 18.5.8 and 28.4.3 offer two alternative means to vary shift lengths. We make two points about that, firstly, as we've already said, extension of shift lengths in something expressly referred to in 18.5.8 but one doesn't find in 24.4.3 any express reference to extending shift lengths. That's a good reason why one would approach 18.5.8 as being the relevant and only provision about that subject matter. As I understand it, Qantas says their capacity to extend shifts is implicit in 28.4.3 because it refers to commencing and finishing times and they may be adjusted in a way which extends shifts.

PN337

Now, can I just make this point and before I make it can I ask the Commission to bear in mind once again that the shift work clause dates back to an era where it was drafted for full time employees and only for full time employees. If the Commission looks at clause 28.2 it sets parameters for shift lengths and arrangement of shifts for employees and we say that's to be read as full time employees. 28.2.1 refers to eight hours in any shift, so this is not an agreement which permits the working of 10 or 12 hour shifts for example. And 28.2.2 refers to 80 hours in two rostered weeks to be worked in not more than 10 shifts.

PN338

Now, unless my mathematics have gone awry, the only combination therefore is 10 shifts at eight hours. That is, if you have shorter shifts you'll infringe the 10 shift limit. If you have longer shifts you'll infringe the shift limitation and I'm instructed in practice that that's what happens, they're eight hours shifts and that's all for full time employees. So once 28.4.3 is read in the context of its own clause it becomes apparent that it can't be talking about extensions in shift lengths because the clause itself does not permit it, at least for full time employees for which the clause was originally drafted.

PN339

So not only does the clause not expressly refer to extending shift lengths, it can't by implication be read as applying to shift extensions. That is another good reason to regard 18.5.8 as the exclusive provision dealing with that matter with respect to shift extensions. Can I just put this other matter on instructions and I only put it because it's in reply to something my learned friend put on instructions. We say another scenario which has arisen in the context of the underlying dispute is that Qantas may, for example, three days out of a particular day see volunteers under 18.5.8 to work additional hours and then when it fails to find volunteers or sufficient volunteers it then turns to utilise or purports to utilise 28.4.3(c) to give two days notice and force the result that they couldn’t obtain voluntarily.

PN340

That scenario once its described in that way indicates a result that could not have been intended, that is, that the consent required by 18.5.8 (12:11:26) so that consent is not forthcoming, the additional hours can be required in any event and again that's - - -

PN341

JUSTICE GIUDICE: I think we're familiar with that argument.

PN342

MR HATCHER: Yes. And that's another good reason why we say their construction is wrong. If it please the Commission. I'm sorry, your Honour, my learned friend referred to supplying a decision of Commissioner Lawson at some stage.

PN343

MR O'GRADY: Yes, I apologise, we haven't been able to obtain it but I'm indebted to my learned friend for raising it. Could I ask leave of the Full Bench to forward a copy of that decision to the Full Bench upon - - -

PN344

JUSTICE GIUDICE: Yes, by all means and a copy to Mr Hatcher.

PN345

MR O'GRADY: Of course, your Honour.

PN346

MR HATCHER: I'm not aware of the decision so can I then have some opportunity to put a brief written note in about the decision?

PN347

JUSTICE GIUDICE: Yes. We won't make orders about that. We'll rely on it to do it reasonably expeditiously and obviously we'll have to reserve our decision so there will be time for that. Thank you, gentlemen, for your submissions and we shall now adjourn.

<ADJOURNED INDEFINITELY [12.12PM]