C2018/5343, Transcript of Proceedings [2018] FWCTrans 474 (17 December 2018)

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PN1

MS E SARLOS: Sarlos, initial E for the respondent in this matter from the CFMMEU and with me is Mr Brunker and Mr Drinnen.

PN2

THE DEPUTY PRESIDENT: Thank you. It's almost you're genetically unable to sit on the applicant and respondent side of the bar table, isn't it?

PN3

MS SARLOS: But I did raise it as we came in, but my friend put me on that side.

PN4

MR B COOPER: Sorry about that, Deputy President.

PN5

THE DEPUTY PRESIDENT: Go straight to your usual positions, take up cudgels. All right the matter has been listed for hearing for the purposes of the parties as I understand it, speaking to the written submissions. There's no witnesses that we're hearing from or statements of evidence.

PN6

MR COOPER: That's correct, Deputy President.

PN7

THE DEPUTY PRESIDENT: With respect to the agreed statement of facts, can I just understand, I just have a couple of questions I wanted to ask about the factual situation that's led to the present issue arising. Is it the case that that the company wishes to work employees who are not currently required to attend a pre-start meeting on one of the rosters in Appendix 1? Or is the case that they wish to have a different roster?

PN8

MR COOPER: There are a number of different rosters that are currently in place. Some of them are under Appendix 1. Some of them are outside of the roster.

PN9

THE DEPUTY PRESIDENT: Outside of Appendix 1.

PN10

MR COOPER: Sorry, outside of Appendix 1.

PN11

THE DEPUTY PRESIDENT: Has there been - has the clause about how to negotiate a salary for that roster been used?

PN12

MR COOPER: Correct.

PN13

THE DEPUTY PRESIDENT: Right, yes.

PN14

MR COOPER: We have established rosters and established salaries, both - as I said, there's a number of different rosters. Some are under Appendix 1, some are not,

PN15

THE DEPUTY PRESIDENT: Yes.

PN16

MR COOPER: In terms of the current situation, there are employees that are working in the coal handling and processing plants who are currently doing pre-starts. There are employees - - -

PN17

THE DEPUTY PRESIDENT: And are they working one of the rosters in Appendix 1?

PN18

MR COOPER: Yes, they are. They're working the - - -

PN19

THE DEPUTY PRESIDENT: Cause see, here's the thing. It strikes me there's another possibility and that is the salaries in the agreement relate to particular rosters and that's what the salaries clause says. So if there is the capacity - I guess what I'm asking is, are you seeking some general finding that in every case where you negotiate a salary for a different roster, you're entitled under the terms of the agreement to factor in a half hour maximum for a pre-start meeting without putting remuneration into the roster?

PN20

What I guess - if the dispute was there's people working one of the rosters in appendix 1 who don't currently - who are not currently required to attend a pre-start meeting and we want them to attend a pre-start meeting. That would be one question, and that I think is the much easier question to answer. I mean, I remain to be persuaded, but my preliminary view which I'll tell you up front, is that the salaries, as attached to those roster patterns, and in my view they do include a half hour, and whether that's comprised of travel and/or pre-start, that's a matter that I want to explore further.

PN21

But I want to know what exactly this dispute is because if you're seeking me to make some general finding in perpetuity that this agreement allows you to have a half hour - that the base rates in this agreement include, once you factor them in and make an annualised salary for a roster, that they automatically include up to half an hour for travel and/or pre-start or whatever, that's a different question. And that's what I'm not understanding. What is the question pertaining to?

PN22

MR COOPER: Our particular question is in relation to employees, particularly under Appendix 1, because there are employees who are currently working that roster and as part of the EBA negotiations that are on foot, there has been a proposal put forward in terms of potentially changing those rosters.

PN23

THE DEPUTY PRESIDENT: Well, if you want to change those rosters, arguably go forth and negotiate and the starting point I'm struggling with is that for all purposes, the existing base rates you have, if you use the - that somehow if you use the formula in the agreement to negotiate a new annualised salary, that it automatically must include the capacity to have a half an hour pre-start, hotseat change, travel, whatever.

PN24

Because arguably, that attaches to the rosters in Appendix 1 and not some generic proposition that in every case where you just take the hourly rates in whatever clause they're in, sorry 10, the clause 10 hourly rates, and multiply them out using penalty payments et cetera that you're automatically entitled to also include in that new salary, a half an hour of travel, pre-start, hotseat whatever it is.

PN25

MR COOPER: I'm sorry your Honour, I was trying to set out the context in which this dispute has arisen.

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR COOPER: So there was negotiations between the parties. There was a proposal about alternative rosters being put forward. The applicant indicated that it intended, or if that was to be discussed, it would intend that everyone would do a prestart roster. The respondent and other non-union bargaining representatives said well actually, we're not sure about whether we want to do that. But the applicant's view was well, if you're already under Appendix 1, we already have the capacity to direct you to undertake pre-starts and that is already built into your salary. That is the foundation on which this dispute has arisen.

PN28

THE DEPUTY PRESIDENT: So the question I'm answering is essentially, do the rosters in Appendix 1, include a half an hour component and leaving aside the question of whether that half hour component is in addition to travel and hotseat change, or inclusive of travel and hotseat change, which is another question that the CFMMEU submission raises, and I think rightly so. That's a good question. But is that what I'm answering?

PN29

Because the proposition I'm going forth and saying forever and a day you've got a right to have a half hour, whatever roster you've got, on the basis of what's before me, is nil, because I'm not going to embark on that exercise because I don't think it's appropriate, particularly when you're negotiating new rosters. But if you want an answer to a question that pertains to rosters in Appendix 1 in relation to this agreement?

PN30

MR COOPER: That is the question that we seek to have determined, yes.

PN31

THE DEPUTY PRESIDENT: Yes and whether those rosters include a half an hour - regardless of whether they're doing it now or not. Whether they include a half an hour of hotseat, travel, et cetera and whether the half an hour only is prestart, or whether it also incorporates hotseat change and travel from the start - from the sign-in area, bath house, whatever it is at this particular mine, to the point at which they start work.

PN32

MR COOPER: Yes, your Honour.

PN33

THE DEPUTY PRESIDENT: Yes, so given my provisional view, is it possible for the parties to have a discussion because if I'm unpersuaded to change my provisional view that all of those rosters in Appendix 1 include a half an hour, then the outstanding question is, is that half an hour inclusive of hotseat, travel and pre-start? Or is half an hour pre-start plus hotseat, plus travel?

PN34

So what's the company's view - the CFMMEU puts that in as its third alternative. Sorry, I'm just trying to cut to the chase and make sure I understand the question. So the CFMMEU, and it's possible I'll accept their third alternative. They say if you've got this free half an hour, then it has to be half an hour and that's it, including travel, including hotseat, include pre-start. Or is that not your position either?

PN35

MS SARLOS: I would say it's more specific than that.

PN36

THE DEPUTY PRESIDENT: It's restricted to travel?

PN37

MS SARLOS: So the exact days in the clause and no grammar interrupting this, time taken between the site entrance and the designated start place for work, including a maximum of 30 minutes for pre-start meetings and hotseat changeovers.

PN38

So the position we would put is that as the third alternative is that where a prestart meeting can occur during the time take to travel between site entrance and the designated start place.

PN39

THE DEPUTY PRESIDENT: What are they meeting as they walk?

PN40

MS SARLOS: Well, the way it's phrased, I agree, it does seem a little absurd, but the way it's phrased, I would say that's the natural reading of that. You can see in circumstances where, say you've got guys who have to catch a vehicle from where they might enter the site to the designated start place. That would be what we say is that interpretation of the clause.

PN41

THE DEPUTY PRESIDENT: But that would require all the crew to be on the one vehicle, or it couldn't be a pre-start meeting really, could it?

PN42

MS SARLOS: No, it couldn't, and we say in the examples of our workers from which this dispute arose, we're talking about two minutes. It's the space of maybe two lengths of this courtroom.

PN43

THE DEPUTY PRESIDENT: Well, that's fine. If we want to argue the toss on that as well, but there's a number of possibilities that emerge from that too. One is that their half an hour is the hotseat and the prestart and not the travel. One proposition is it's all three and one proposition is there's no half hour circle around this and it's just limited to the time of the travel.

PN44

MS SARLOS: And we would say it's the third of those because of the operation of the word 'including'.

PN45

THE DEPUTY PRESIDENT: And it might not be.

PN46

MS SARLOS: No, and that's good.

PN47

THE DEPUTY PRESIDENT: Do we want to proceed with this, or is there a possibility of reaching some resolution because if - it would seem to me, I don't know how this might go because I've just looked at it and thought well, hang on a minute, this is not as clear as it appears, because I don't know what you're trying to achieve out of the exercise for a start. But if the starting point is that there's a half an hour in that annual salary and it's no more than that, and it's made up of travel, hotseat and pre-start meetings, and if you want another roster, you have to renegotiate the annual salary and there's no starting proposition that you get a half hour free kick automatically, that that's got to be negotiated into the rate you're going to pay for your new roster. Is that a way of resolving this?

PN48

If it's not, that's fine. But if you want to take a minute and think about that, I'm happy to let you do it.

PN49

MS SARLOS: We would be open to that.

PN50

THE DEPUTY PRESIDENT: Have I made that clear? Because if you look at the clause again - I'll remain to be persuaded, but it says a maximum 30 minutes. So the maximum 30 minutes must apply to something and does it apply to pre-start meetings and hotseat, or does it apply to all of it?

PN51

You say it has no work at all to do?

PN52

MS SARLOS: It would say it refers to the time taken to travel and that can be up to 30 minutes if, for whatever reason you know, some mines, not this mine, but you might need to travel from the top.

PN53

THE DEPUTY PRESIDENT: Then why isn't - if it means that, why isn't it before travel as well as before pre-start and hotseat. It's position in the sentence is - - -

PN54

MS SARLOS: It's a difficultly phrased clause, which is why we're all here today.

PN55

THE DEPUTY PRESIDENT: Yes, I've just written 20 pages on the placement of a comma involving your union Ms Sarlos, and I'd really rather not write 20 pages on the fact that there is no comma.

PN56

MR COOPER: Well, in our view, where it intends to require workers to work without additional compensation, it say so. It says that in relation to the time taken to travel between site entrance and the designated start place, that's at clause 7. It also says so in clause 11 specifically about the training day where workers might be required to attend outside their normal rostered hours.

PN57

We say the only way that you can have - this is the only mention to pre-start meetings in the entirety of the agreement. The only way that it can be taken to be unremunerated or already packaged within the annual salary, is where it falls within that provision that it is the time taken to travel between A to B.

PN58

THE DEPUTY PRESIDENT: I understand your argument, but there is a possible other construction, which is that it's not part of the roster, but it's part of the salary and the salary covers more than just the rostered hours. Because a roster is more than just the working hours; a roster is an arrangement whereby people interchange with other people and how the patterns of the shifts, when night finishes, when day finishes, what the space is between them.

PN59

So arguably, the roster is more than just the working hours and the argument is whether that annual salary covers not only the hours in the roster, but it covers this bit of slipped time for get to the job, have all your gear on, be ready to start, have a hotseat change, walk down there and have a quick pre-start meeting and we landed on this 30 minute maximum.

PN60

If you want to have a talk about that, I'm happy to give you some time to do that.

PN61

MR COOPER: We think that might be beneficial.

PN62

THE DEPUTY PRESIDENT: Right, good.

PN63

MS SARLOS: Thank you.

PN64

THE DEPUTY PRESIDENT: Especially when you're about to start negotiating a new agreement or you're in the process of it. Anyway, thank you.

SHORT ADJOURNMENT [10.37 AM]

RESUMED [11.06 AM]

PN65

THE DEPUTY PRESIDENT: Thank you. Mr Cooper.

PN66

MR COOPER: Thank you, your Honour. We have had the opportunity to speak with the CFMMEU, but we haven't been able to reach a consensus position, so we'll proceed on that basis.

PN67

THE DEPUTY PRESIDENT: All right, thanks. Are we going to tender the statement of agreed facts?

PN68

MR COOPER: Yes please.

PN69

THE DEPUTY PRESIDENT: We'll mark that as exhibit 1.

EXHIBIT #1 STATEMENT OF AGREED FACTS

PN70

Do you want to speak to your submissions, Mr Cooper?

PN71

MR COOPER: I will thank you, your Honour.

PN72

Before I start, I just need to correct an issue in the written outline of submissions that we have provided.

PN73

THE DEPUTY PRESIDENT: Yes.

PN74

MR COOPER: If I can take the Commission to paragraphs 9 and 10, particularly 10. We said there that the salaries were all inclusive, that there was no provision for overtime provided for under the enterprise agreement. Since reviewing the respondent's submissions and seeking further instructions from the applicant, we accept now that clause 12.6 of the agreement, whilst not referenced as overtime, is treated by both the applicant and the respondent and also the AMWU, who are a party to the agreement, as having that particular purpose.

PN75

To that extent, we accept that clause 12 has two purposes, one being the creation of, or a mechanism by which new rosters are established and certainly there are a number of rosters that have been established under that clause in the four years or so that the agreement has been - - -

PN76

THE DEPUTY PRESIDENT: Sorry, the AMWU?

PN77

MR COOPER: The AMWU was also a party to the agreement - not this agreement? Sorry my apologies.

PN78

THE DEPUTY PRESIDENT: Don't do that to me Mr Cooper, because where are they?

PN79

MR COOPER: I apologise, my confusion arose - I think they're are bargaining representative for a current agreement.

PN80

THE DEPUTY PRESIDENT: Yes.

PN81

MR COOPER: I do apologise.

PN82

THE DEPUTY PRESIDENT: Good, because we would have been out of here again to find out what they thought.

PN83

MR COOPER: No, no, and my recollection was also that they attended the original disputes conference, but more as an interested party.

PN84

THE DEPUTY PRESIDENT: Yes.

PN85

MR COOPER: Sorry, the submission I was making in regards to clause 12 is that we accept that it has two purposes. Firstly that it is a mechanism by which new rosters may be established and as I said, there are a number of rosters that - four or five rosters that have been established in the four years since the operation of the agreement. Those rosters have been predicated upon the basis of which the rosters under Appendix 1 have been calculated.

PN86

But further to that, we accept that clause 12.6 and relevantly - or perhaps not relevantly, but 12.5, 12.7 and 12.8 all provide an additional benefit to employees working outside of the roster. So I'll leave that issue and come back them to the primary issue which is what is the appropriate meaning of annual salary as defined under clause 11 of the enterprise agreement.

PN87

Now, the applicant says that their clause, particularly the first paragraph has a plain meaning which is that it compensates, or salaries compensate employees for the work performed. That submission is accepted by the respondent at paragraphs 9 and 37 of its outline of submissions.

PN88

THE DEPUTY PRESIDENT: Everyone always says every agreement construction, it has a plain meaning and then proceeds to put two completely arguable cases for totally different meanings. So, and say theirs is plain meaning. Clearly - anyway.

PN89

MR COOPER: With respect your Honour, this situation may be different because my understanding of the respondent's submissions is the same as ours and they go so far as to say that the parties are in agreement in the interpretation of what annual salary means. Again, come back to paragraph 9 of their outline of submissions.

PN90

Where we vary is that the respondent has a particular view which we say is incorrect in regards to rostered hours and that work can only be performed within rostered hours. Now we say that's clearly not the case. The agreement contemplates a number of aspects of work which may be performed outside of rosters and they include clause 12.6. They also include the final paragraph of clause 11 and perhaps most relevant to this particular dispute, they include clause 7 of the agreement.

PN91

As the Commission identified prior to the break, the pertinent issue is most likely to be whether in fact- sorry, if I could take the Commission to paragraph 7, that might be the better place to start. The clause says:

PN92

Work will start and finish in the employee's designated work location within the company's areas of operations.

PN93

And then sets the designated work locations to be relevant to the individual operational areas.

PN94

This then says:

PN95

Travel to and from the employee's designated work location prior to the commencement and at the conclusion of the employee's daily shift shall be in the employee's own time.

PN96

Coming back to clause 11, it says:

PN97

Annual salaries shall mean an employee's remuneration for 52 weeks, considering of compensation for all hours worked, including rostered hours, time taken to travel between the site entrance and the designated start place of work, which is defined by clause 7, including a maximum 30 minutes for pre-start meetings and hotseat changeovers.

PN98

Now it's our submission that having an understanding of the context of the word 'location', we appreciate the Commission hasn't had the benefit of seeing the site, but I don't think it's in dispute between the parties that the travel from the mine entrance to the designated place of work would take no more than about five minutes.

PN99

the parties that the travel from the mine entrance to the designated place of work would take no more than about five minutes.

PN100

THE DEPUTY PRESIDENT: Do they walk or do they ride?

PN101

MR COOPER: They drive. There's a number of means so that - sorry, I'm instructed they could be both. There is employees that come in by bus to camp. From the car park they might then walk to their designated place of work. Obviously, given the site entrance - the site administration is somewhat away from the mine pit, employees would normally in that case be transported to their designated place of work.

PN102

Again, given that we say that that is a very short period of time, the reference then to including a maximum of 30 minutes for pre-start meetings and hotseat changeovers, clearly anticipates that more would happen within that period of time, including the briefing of the prestart which for employees who are currently undertaking pre-starts, is limited to only 15 minutes. We say the important operative word there is the maximum of 30 minutes for pre-starts.

PN103

It is specifically intended that the pre-starts could be up to 30 minutes and that that is included in the travel time for the organisation. We don't accept the submission - - -

PN104

THE DEPUTY PRESIDENT: So you say it's included in the travel time, because arguably, travel time is dealt with separately or its categorised differently because it's dealt with in clause 7 and it specifically says it's in the employee's own time, whereas the pre-start and the hotseat change isn't limited in that way.

PN105

MR COOPER: Well, our submission is that given the context of the two provisions together between the two commas, that travel time it was intended by the parties that travel time would be taken to be both the travel between the commencement - sorry, the mine entrance and the place of work, being it included 30 minutes for the pre-start. So the pre-start is contemplated as part of travel time.

PN106

Now in respect of the submissions made by the respondent, in terms of requirement for payment, we say that clause 11 is quite clear. The pre-start has already been paid for as part of salary, so it is not a question of employees not being paid for that time. In fact the current situation is that employees are receiving the benefit for that time which is not being required currently by the employer.

PN107

The respondent's submissions also go at some length to talk about the fairness of the proposition. It's our submission that fairness has already been dealt with because the time has been encapsulated already as part of the salaried arrangements and the agreement has gone through an approval process that is being considered against the better off overall test. That is time which has already been paid for. Even if that were not the case, the Berri principles, especially principle two, specifically do say that an agreement should not be reconstructed to create a fair outcome, given there is unfairness that follows.

PN108

Specially, your Honour, Berri principle two says:

PN109

The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by the parties.

PN110

THE DEPUTY PRESIDENT: Except when you look at Cutts v CSR, there's a further paragraph which says that provided that an industrially sensible outcome could reasonable by strained for, which I think I'm paraphrasing it, but that's what Cutts and CSR says. You don't rewrite it, but you can reasonably - if at the end of the day, you're striving for an industrially sensible outcome as well.

PN111

MR COOPER: Yes, and I'll come back to that, our first submission in that regard, your Honour, which is that such a sensible industrial outcome has already been reached which is that the agreement contemplated that the time was built into the annual salary. That has gone through an approval process. It's passed the BOOT and therefore employees have been compensated for that time.

PN112

Do you say that this maximum of 30 minutes includes travel, pre-start and hotseat?

PN113

MR COOPER: Yes.

PN114

THE DEPUTY PRESIDENT: Right.

PN115

MR COOPER: Unless you have any further questions?

PN116

THE DEPUTY PRESIDENT: No.

PN117

MR COOPER: Thank you.

PN118

THE DEPUTY PRESIDENT: Thanks, Ms Sarlos?

PN119

MS SARLOS: In our submission it cannot be presumed from this text that the applicant can require attendance outside of rostered hours in the way that the question we put to be answered today assumes. That in turn provides us with a further preliminary question, which is can attendance at a pre-start be unrostered?

PN120

Interpretation of the agreement commences with consideration of the ordinary meaning of the relevant provisions with regard paid to the context and purpose of that which has been construed. When trying to ascertain the broad purpose of clause 11, on the whole it is relatively clear. I concede there is a lot within in, but on the whole the purpose of it is that it sets out what is included in the annual salary being that it is compensation for all hours work.

PN121

Now, all hours worked includes public holidays, weekend work, shift work. It also includes rostered hours. Where clause 11 says annual salary means an employee's remuneration for all hours worked, including rostered hours and then lists those and other examples, it is not that those examples are meant to be in addition to rostered hours; they are rostered hours.

PN122

The mention of a pre-start meeting, in fact the only mention of pre-start meetings throughout the whole agreement, is included in this list.

PN123

THE DEPUTY PRESIDENT: Well doesn't that mean that if that argument is correct, if annual salary - if rostered hours includes all of those things, then how can that be when you've got the provision in clause 7 that says travels in the employee's own time?

PN124

MS SARLOS: I will come to that. So, on this point, the respondent's submission is that the agreement includes pre-start meetings in this clause as part of rostered hours. Just in the same that, for example, public holidays were also part of rostered hours.

PN125

Now to artificially separate hours worked in accordance with a roster, from rostered hours, requires a significant amount of linguistic gymnastics. You see that very clearly when considering public holidays and the like. You can't just separate them because other passing reference. It may be less clear for pre-start meetings, because of the phrasing and its apparent relationship to the time taken to travel between site entrance and the designated work location.

PN126

THE DEPUTY PRESIDENT: It's always been the case, I mean since I can remember looking at old awards and I'm sure Mr Brunker goes back as far as me, that time travelled is not time worked. It might be paid, but it's not worked because you're travelling and we used to even go so far to say that the person driving the vehicles was working because they were actually working to transport others.

PN127

So someone driving to a remote site, the driver was travelling, the passenger wasn't, and you might split it between them because they might swap the driving, but there was always the understanding that time spent travelling was not time spent working, notwithstanding that it got paid. So why is this any different?

PN128

MS SARLOS: Because a pre-start meeting is necessarily of a character that - I guess you could say the same for time travelled to get to work. But you can't start work without a pre-start meeting. It contains very important safety information, information about the conditions. It seems very arbitrary to separate it from hours worked, but also we don't need to even get to that point because the clause 11 refers to it as hours worked.

PN129

It says:

PN130

The annual salary consists of compensation for all hours worked.

PN131

So, putting to the side that industry discussion, I think - - -

PN132

THE DEPUTY PRESIDENT: So you say including attaches to the salary, not to the things that thereafter appear?

PN133

MS SARLOS: I'm sorry, I'm not sure - - -

PN134

THE DEPUTY PRESIDENT: Sorry, are you saying the including attaches to worked, not to the salary?

PN135

MS SARLOS: Yes.

PN136

THE DEPUTY PRESIDENT: So hours worked including the following work, whereas, you could read it the other way of reading it as annual salary includes. The including attaches back to the annual salary, rather than the worked part?

PN137

MS SARLOS: Or in the alternative, it attaches to both. I don't think you need to separate them, necessarily.

PN138

I think important in this dispute is a consideration of what are rostered hours. It's not defined in the agreement, but we get some assistance from the ordinary meaning of the words, as set out in our written submissions for records showing periods of time or work. But of course the term rostered hours, isn't a foreign concept to anyone in this room, I would think. It takes on a very specific meaning in this context and in our view, a reasonable person would understand the meaning of the term to be notorious to the extent that its meaning is presumed to be shared by both parties.

PN139

To that end, we would cite the definition of rostered hours provided in the award, the Black Coal Mining Industry Award. It's part of the legislative context in which the agreement was made and operates. It's not difficult to envision that the way the award defines rostered hours was both a notorious fact and in the common contemplation of the parties. In the award, rostered hours means ordinary hours of work and rostered overtime.

PN140

Attendance at a pre-start as we just discussed, is considered part of hours worked by clause 11. Clause 11 can be read in such a way. It has a temporal relationship to substantive work in that it must immediately precede that work. It is our understanding that the meetings are to take place on each day of work. The idea that a regular, required and scheduled component of hours worked would not be considered part of ordinary hours worked, is in our submission, bordering on absurd. A reading of that provision which advances such a view, should be avoided.

PN141

Notwithstanding all of the above, simply on a practical level, it's difficult to comprehend how a required attendance of up to 30 minutes, can be unrostered. If it's up to 30 minutes, are we allowed to turn up with 27 minutes to come? Are we allowed to turn up with eight minutes to come? How is it determined? How is it communicated? Is non-attendance disciplined? How does it work with the meal break requirements of clause 8? It can hardly be that the applicant seeks to have employees that work up to half an early on their own time, only to then provide them with an extra 30 minutes meal break on site.

PN142

Construction of industrial instruments should contribute to a sensible industrial outcome. Where an absurdity arises, one should see whether any other meaning capable of operating would see a more reasonable result. In our submission, a more reasonable result would be that where pre-start meetings are required, they are to form part of rostered hours. Not only is this reasonable, but it would also adhere to industry standards where that is generally how pre-start meetings are dealt with.

PN143

In the event that we are wrong on this point, we submit that if an employee can be required to attend a pre-start meeting outside of rostered hours, they should be paid for that. The applicant now submits that clause 12.6 is used s a way to calculate amounts owed for overtime. That is, it's payment for each hour worked, in addition to rostered hours. In our submission a requirement to attend outside of rostered hours should be paid at that rate. This is because of the fundamental position the work wages bargain plays in any employment relationship, that where an employee is required to perform work, it will ordinarily be paid.

PN144

Now, the applicant has said that there are exceptions to that in the agreement and we completely agree. Clause 7 contains an exception around the time taken to travel to work. Clause 11 contains an exception in respect of training days. But a passing reference to pre-start meetings cannot be seen to express the intention to depart from this fundamental principle.

PN145

To the argument that the amount has been factored into the annual salary and is already paid, in our submission, this is not correct. The agreement shows how annual salaries are calculated in respect of new rosters, and gives us a fair indication of how the current rosters were remunerated in the absence of any other evidence to that effect. Clause 12 does not provide any remuneration for attendance at pre-starts specifically. In our submission, that is because it is intended to form part of the ordinary hours of work.

PN146

Even if we don't accept that these clauses indicate anything about salaries that are current rosters, they assist us when considering how whatever is the term today may inform the future. Were the employer to introduce new rosters and attach remuneration in accordance with clauses 12.1 to 12.5, then those employees would not receive remuneration for attendance at a pre-start under the agreement advanced by the applicant. I accept that we've limited today in a way where that may no longer be relevant, but I think it's worth considering.

PN147

THE DEPUTY PRESIDENT: Considering in the context of how the agreement operates overall?

PN148

MS SARLOS: Sorry?

PN149

THE DEPUTY PRESIDENT: That matter needs to be considered in the context of how the agreement operates the terms of the agreement read as a whole.

PN150

MS SARLOS: Yes, absolutely.

PN151

THE DEPUTY PRESIDENT: Yes, so you're saying you couldn't construe clause 11 in a way that was inconsistent with the way that a salary is developed?

PN152

MS SARLOS: With subsequent rosters which the agreement provides for.

PN153

THE DEPUTY PRESIDENT: Yes, understand.

PN154

MS SARLOS: So again, without an express intention to depart from the work wages bargain, I think we need to tread very carefully about in fact, doing that.

PN155

Now, our alternate contention is to those arguments, they are then in our view, there is only one further way in which the provision may be read which is to answer that initial question with a no, but as a qualified no. Returning to the text of the clause, it doesn't refer to pre-start meetings in isolation. The full phrase considered by the clause is:

PN156

Time taken to travel between site entrance and the designated start place for work including a maximum of 30 minutes for pre-start meetings and hotseat changeovers.

PN157

Even putting the meaning to one side, it definitely could do with some grammar; it's a bit of a mouthful, but what it sets out is a textural relationship between pre-start meetings and the time taken to travel. It must be read in a way that does not see pre-starts stand alone by virtue of this clause.

PN158

Where a pre-start takes place during the time taken to travel between the site entrance and the designated start place of work, then and only then, can attendance at a pre-start be required outside of rostered hours and not attract additional remuneration. Simply because it is occurring within a period of time which the agreement provides, is done in the employee's own time.

PN159

THE DEPUTY PRESIDENT: Thank you.

PN160

MS SARLOS: We've already discussed that this has some challenges, I think we did that before the break, particularly for these workers where their designated start location is about two minutes from where they enter the site. But I don't think those complications mean that we need to jump to the point where we require them to be at work 30 minutes before their start time.

PN161

Given the way the phrase is structured and the absence of any intent elsewhere in the agreement, in our view, this is all clause 11 can allow. Of course, our submission is that the more sensible industrial outcome - sorry, before I get there, my friend mentioned the required travel to the pit. That would be a completely reasonable period of time within rostered hours in which a pre-start could occur. I'm sure there are many other examples. There is no requirement for a pre-start to occur outside of rostered hours.

PN162

Of course our submission is that the more sensible industrial outcome would be that you cannot rely on a passing reference to a pre-start meeting in an annual salary clause to give the applicant the authority to require its employees to work up to an 11 hour shift. But in the event that it does, attendance is limited to the circumstances we've discussed.

PN163

THE DEPUTY PRESIDENT: What do you say - is it already happening? Are there already employees working one of the rosters in Appendix 1 who are attending pre-start meetings in the manner contended for by the employer?

PN164

MS SARLOS: My instructions are that not on the appendices. So not on those rosters, no.

PN165

THE DEPUTY PRESIDENT: So there are no employees on working rosters in Appendix 1 that are attending a pre-start meeting that's - - -

PN166

MS SARLOS: Outside of rostered hours. My understanding is no, but - - -

PN167

MR COOPER: Correct.

PN168

THE DEPUTY PRESIDENT: So the question is can you, rather than are you currently? Is what you're currently doing - - -

PN169

MR COOPER: Well certainly from the applicant's perspective, we believe that we have capacity to direct employees; we've not currently done so.

PN170

THE DEPUTY PRESIDENT: So the current practice is that if employees are working, let's take for argument's sake, the four panel, seven day night 12 hour HSC roster, that they're actually working - which roster are they doing, sorry?

PN171

MS SARLOS: They're only working - is it the one page 19?

PN172

MR COOPER: Yes.

PN173

MS SARLOS: So the three panel, six day afternoon, 10.5.

PN174

THE DEPUTY PRESIDENT: Afternoon - 10 and a half hour roster. How long is the pre-start meeting? Is it the practice that there's half an hour of pre-start and then 10 hours of work? What's the practice?

PN175

MR DRINNEN: I actually work on C-crew, so - should I be standing up?

PN176

THE DEPUTY PRESIDENT: No, that's fine, you can be comfortable and tell me all about it.

PN177

MR DRINNEN: We start at 6.30 in the morning.

PN178

THE DEPUTY PRESIDENT: Yes.

PN179

MR DRINNEN: That's where we've got to be up at the boom gates at the head office. We make our way down, so that's at 6.30. We make our way down generally a little bit before then and put all our stuff away and then pre-start starts normally about quarter past, something like that and we're hopefully at our machines by seven.

PN180

THE DEPUTY PRESIDENT: So what time are you paid from?

PN181

MR DRINNEN: 6.30.

PN182

THE DEPUTY PRESIDENT: The practice now is then you work another 10 hours, not 10 and a half hours on that shift?

PN183

MR DRINNEN: Yes, so we have a five hour stint from that 6.30 and then a half hour break and then another five hours.

PN184

THE DEPUTY PRESIDENT: What time does the next - so on that roster, the day afternoon, so the day shift starts at 6.30 and goes for 10 and a half hours. When does the afternoon shift start?

PN185

MR DRINNEN: It comes in at 4.30.

PN186

THE DEPUTY PRESIDENT: And finishes at?

PN187

MR DRINNEN: Goes till three in the morning.

PN188

THE DEPUTY PRESIDENT: So 10 and a half hours.

PN189

MR DRINNEN: Yes.

PN190

THE DEPUTY PRESIDENT: There's a hotseat change between the two? There'd only be between the day and the afternoon?

PN191

MR DRINNEN: Yes.

PN192

THE DEPUTY PRESIDENT: Yes, right.

PN193

MR DRINNEN: When the afternoon shift comes in at 4.30, we're generally having a little pre-start meeting - I'm on the dozers, so we have a little pre-start - like they have their main pre-start and then we give them any more additional hazard or whatever and they're ready to go.

PN194

THE DEPUTY PRESIDENT: No one is physically there for longer than 10 and a half hours, including hotseat and pre-start?

PN195

MR DRINNEN: As long as all goes to plan, yes. Like in the perfect world.

PN196

THE DEPUTY PRESIDENT: Yes.

PN197

MR DRINNEN: But like stuff happens sometimes.

PN198

THE DEPUTY PRESIDENT: Sometimes if you go over you don't get paid in addition, but that's not a normal - it's something out of - there's a breakdown or something out of the ordinary.

PN199

MR DRINNEN: Maybe if there's a few more safety hazards or something and the pre-start goes a bit longer, but it does happen from time to time, but not all the time.

PN200

THE DEPUTY PRESIDENT: But if the pre-start goes a bit longer, if doesn't get added on to the end? You still knock off at the same time?

PN201

MR DRINNEN: Depending if we get out to the head office. If we get out there at 5 o'clock. It's a hard one, like the set up of it all. But generally, we're out pretty close to that 5 o'clock mark.

PN202

THE DEPUTY PRESIDENT: But say you come on at 6.30 in the morning and the pre-start goes a little bit longer and you don't start till say 7.05, then when you change over with the afternoon shift, you don't do that later than you otherwise would, do you?

PN203

MR DRINNEN: No, it still starts at the same time.

PN204

THE DEPUTY PRESIDENT: Yes, I understand. If the pre-start goes longer, it eats into the shift time?

PN205

MR DRINNEN: Yes, so in between the day shift and the afternoon shift, if the pre-start does take a bit longer, we do get out a little bit late.

PN206

THE DEPUTY PRESIDENT: Because you're waiting for them to come and get onto your machine and you've got to do a hotseat.

PN207

MR DRINNEN: Yes, we still pull up at what say 20 to and clean out our cabs and do all that stuff.

PN208

THE DEPUTY PRESIDENT: But you might be waiting a bit longer if the commencing afternoon shift has a slightly longer pre-start?

PN209

MR DRINNEN: Yes.

PN210

THE DEPUTY PRESIDENT: But it wouldn't happen - yes I understand.

PN211

MR DRINNEN: It wouldn't happen every day.

PN212

THE DEPUTY PRESIDENT: It wouldn't happen to the crew that was starting, it would affect the crew that was finishing.

PN213

MR DRINNEN: Yes, that's right.

PN214

THE DEPUTY PRESIDENT: Yes, understand, all right.

PN215

MS SARLOS: Can I just add to that? I think it's not by coincidence that those shifts are limited to 10.5 hours because the second they clock over, the guys get another 30 minutes.

PN216

MR DRINNEN: Yes.

PN217

THE DEPUTY PRESIDENT: I understand your submission and thank you for that. That's of great assistance. Is there any disagreement about the factual content of what I've just been told?

PN218

MR DRINNEN: No.

PN219

THE DEPUTY PRESIDENT: That is Mr Drinnen. Yes, thank you.

PN220

Is there anything you wanted to say in reply Mr Cooper?

PN221

MR COOPER: No thank you.

PN222

THE DEPUTY PRESIDENT: All right, well thank you very much for the submissions and I will indicate that I will reserve my decision and I'll issue it in due course. Thank you.

ADJOURNED INDEFINITELY [11.38 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 STATEMENT OF AGREED FACTS........................................... PN69

Fair Work Commission Transcripts

C2018/5343, Transcript of Proceedings [ 2018] FWCTrans 474 (17 December 2018)