"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v EDI Rail PPP Maintenance Pty Ltd [2026] FWC 876

1 Fair Work Act 2009 s.739 - Application to deal with a dispute "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v EDI Rail PPP Maintenance Pty Ltd (C2025/10733) COMMISSIONER CRAWFORD SYDNEY, 17 MARCH 2026 Dispute under enterprise agreement – agreement requires a salary rate review where a roster pattern involves a percentage of night shifts in excess of a prescribed figure – parties have differing views about the divisor to be used for the required calculation - agreement has a clear meaning – dispute resolved in favour of the AMWU BACKGROUND [1] A dispute has arisen between the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australia Manufacturing Workers’ Union (AMWU) and EDI Rail PPP Maintenance Pty Ltd (EDI Rail) about the terms of the Downer Rail Auburn Maintenance Agreement 2023 (Agreement). The dispute concerns the calculation of the proportion of night shifts that are being worked by employees as part of a 12-week roster cycle. The parties agree the dispute resolution procedure has been followed and that I have jurisdiction to arbitrate the dispute pursuant to the dispute resolution procedure in clause 48.4 of the Agreement and s.739 of the Fair Work Act 2009 (FW Act). This decision reflects my arbitrated resolution of the dispute. [2] I conducted a hearing via video on 5 March 2026. I granted permission for EDI Rail to be represented by a lawyer at the hearing on the basis granting permission would enable the matter to be dealt with more efficiently. This was not opposed by the AMWU. The AMWU relied on evidence from Andrew Peach (Maintenance Technician and Delegate). EDI Rail relied on evidence from Chris Bradley (General Manager of Operations). PRINCIPLES OF INTERPRETATION [3] In Skene v Workpac Pty Ltd1, the Full Court of the Federal Court of Australia summarised the principles for interpreting an enterprise agreement as follows: “The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of [2026] FWC 876 [Note: An appeal pursuant to s.604 (C2026/4596) was lodged against this decision.] DECISION -- 1 of 8 -- [2026] FWC 876 2 the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” RELEVANT PROVISIONS IN THE AGREEMENT [4] Clause 23 of the Agreement states: “23.1 At the discretion of the Company rosters will be designed so that Employees will work an average of thirty eight (38) ordinary hours per week over the roster cycle. Such rosters may include: (a) nine hundred and eighty-eight (988) hours over a twenty-six (26) week work cycle; or (b) four hundred and fifty-six (456) hours worked over a twelve (12) week work cycle; or (c) three hundred and eighty (380) hours worked over a ten (10) week work cycle; or (d) three hundred and four (304) hours worked over an eight (8) week work cycle; or (e) two hundred and twenty-eight (228) hours worked over a six (6) week work cycle; or (f) one hundred and fifty-two (152) hours worked over a four (4) week work cycle.” [5] Clause 30.4(a) of the Agreement prescribes Annual Rates for shift workers as hourly, weekly, and yearly rates. [6] Clause 30.4(c) of the Agreement states: “The Annual Rate prescribed in Clause 30.4 compensates fully for: (i) base classification rate; (ii) all allowances (except as outlined in (d) below); (iii) shift loadings; (iv) weekend penalty rates; (v) annual leave loading; (vi) public holidays an Employee is not required to work; -- 2 of 8 -- [2026] FWC 876 3 (vii) supplementary payments; and (viii) all competencies possessed and required to be utilised on the job.” [7] Clause 30.4(d) of the Agreement states: “The following payments shall be calculated separately: (i) overtime (overtime is calculated using the applicable day worker rate at clause 30.3); (ii) meal allowance for mobile technicians; (iii) first aid allowances (where applicable); (iv) electrical license allowance; (v) call back/on call arrangements for NLR; (vi) overnight and accommodation allowances; (vii) overtime meal allowances; and (viii) penalties for public holidays when worked.” [8] Clause 30.4(e) of the Agreement states: “Subject to clause 30.4(f) (below), the Annual Rate has been calculated to ensure any fluctuations in the workload can be catered for with alterations to the rosters, without the need to review the prescribed Annual Rate. Such alterations in the roster must be in accordance with clause 22 (Flexibility Requirements in Hours, Shift Work and Rosters).” [9] Clause 30.4(f) of the Agreement states: “The Company will review the Annual Rate for particular classifications where alterations to a roster require Employees in that classification to work more than the percentage of shifts in a roster cycle set out in clause 30.5;” [10] Clause 30.5 of the Agreement has a table containing percentage of shift figures. In relation to Mr Peach’s classification of Maintenance Technician, the table states: Classification Afternoon shift* Night shift* Saturday shift** Sunday shift*** Maintenance Technicians 25% 25% 40% 40% [11] There is a note under the table which states: “Afternoon and night shifts worked on a Saturday and Sunday are counted in the percentage of the Saturday or Sunday shift in the above table. (For example, if an Employee works a Saturday afternoon shift for the purposes of this clause, it will count towards the percentage of Saturdays – not the percentage of Afternoon shifts).” [12] Critically for this dispute, clause 30.5(g)2 of the Agreement states: -- 3 of 8 -- [2026] FWC 876 4 “For the purposes of clause 30.4(e) and (f), the percentage of shifts will be calculated based on the number of total possible shifts the Employee can work in a roster cycle divided by the total number of the actual shifts in the roster cycle multiplied by one hundred (100). Example: If an Employee works nine (9) night shifts in a four (4) week roster cycle (i.e., nine (9) out of a possible twenty (20) night shifts) that Employee would have worked forty-five (45) percent night shifts in the roster cycle: Nine (9) night shifts/twenty (20) possible night shifts x one hundred (100) = forty-five (45%) night shifts in the roster cycle.” RELEVANT FACTS [13] There is no dispute that: • Mr Peach currently works under a 12-week roster cycle. • The maximum ordinary hours that can be worked in a 12-week roster cycle are 456 hours in accordance with clause 23.1(b) of the Agreement. • Mr Peach’s roster involves a mixture of 12-hour day and night shifts worked which can be worked on any day of the week. • Mr Peach is required to work 15 night shifts from Monday to Friday during the 12- week roster cycle.3 • Mr Peach works an additional four night shifts on the weekend during the 12-week roster, but these shifts are counted as Saturday or Sunday shifts in accordance with the note under the table in clause 30.5 of the Agreement.4 THE PARTIES’ POSITIONS [14] The AMWU contends that the calculation required by clause 30.5(g) to determine the percentage of night shifts worked by Mr Peach is: 15 actual nights shifts ÷ 38 possible 12-hour shifts during the 12-week cycle x 100 = 39.5%. [15] If the AMWU’s position is correct, EDI Rail would be required to review the Annual Rate for Mr Peach (and other relevant employees) in accordance with clause 30.4(f) of the Agreement because the 25% night-shift percentage limit in the table in clause 30.5 is exceeded. [16] EDI Rail contends that the correct calculation is: 15 actual night shifts ÷ 60 potential night shifts over 12 weeks based on 5 night shifts per week from Monday to Friday x 100 = 25%. -- 4 of 8 -- [2026] FWC 876 5 [17] If EDI Rail’s position is correct, the 25% night shift percentage limit in the table is not exceeded and EDI Rail would not be required to review the Annual Rate for Mr Peach (and other relevant employees). CONSIDERATION [18] Even leaving aside the issue in dispute between the parties, the words used in clause 30.5(g) are problematic. Clause 30.5(g) refers to the total number of possible shifts the Employee can work in a roster cycle (which is 38 according to the AMWU, or 60 according to EDI Rail) being divided by the total number of actual shifts in the roster cycle (the parties agree this is 15 night shifts) multiplied by 100. [19] A literal approach based on the words used in clause 30.5(g) would result in a figure of 253% night shifts based on the AMWU’s position (38 ÷ 15 x 100), and a figure of 400% night shifts based on EDI Rail’s position (60 ÷ 15 x 100). [20] However, the wording used in clause 30.5(g) is clearly inconsistent with the intended operation of the provision. That is confirmed by the example that appears below. The example confirms the intent is for the actual number of shifts to be divided by the total possible shifts and then that figure is multiplied by 100. Both parties approached the required calculation on that basis. I consider that is the correct approach. [21] Based on the mathematical formula of Dividend ÷ Divisor = Quotient, the parties agree that the Dividend for the required calculation is 15 actual night shifts. The parties are in dispute about whether the appropriate Divisor is 38 possible shifts during the 12-week roster cycle or 60 possible shifts. [22] The rationale for the AMWU’s position is straightforward. Mr Peach can work a maximum of 456 ordinary hours during the 12-week roster period. Given Mr Peach works 12- hour shifts, the total number of 12-hour shifts that it is possible for Mr Peach to work during the 12-week roster period is 38: 38 shifts x 12 ordinary hours = 456 ordinary hours. [23] The rationale for EDI Rail’s position primarily arises from the example that appears below clause 30.5(g). EDI Rail argues that the purpose of the example is to confirm that the divisor for possible night shifts will always be five per week because shifts worked on the weekend are treated as Saturday or Sunday shifts, rather than night shifts. [24] However, I do not think it is necessarily clear that the example uses a figure of 20 possible nights shifts over 4 weeks because weekend days are not included in the calculation of possible night shifts. Given that a maximum of 152 ordinary hours can be worked over a 4- week roster cycle, the reference to 20 possible night shifts may have been used because an employee working standard 7.6 hour shifts could work a maximum of 20 shifts over the 4-week cycle, regardless of whether the ordinary hours are worked from Monday to Friday or over the weekend. [25] Further, the definition of a night shift in clause 25.4 of the Agreement states: -- 5 of 8 -- [2026] FWC 876 6 “Night shift means any shift commencing after 6:00pm and finishing after 12:00am (midnight) (excluding overtime hours after a rostered shift).” This provision in conjunction with the span of ordinary hours for shift workers in clause 25.1(a) means a night shift can be worked on any day of the week, including Saturday or Sunday. This approach is consistent with clause 33.2 of Manufacturing and Associated Industries and Occupations Award 2020 (Award), which is incorporated into the Agreement via clause 4.2. [26] Given the Agreement does not expressly contain shift loadings, the shift loadings in the incorporated Award apply in accordance with clause 4.2. Clause 33.2(i)(ii) and clause 33.2(j)(vi) of the Award have been included to confirm that a shift worker working an afternoon or night shift on a Saturday or Sunday receives the higher weekend penalty rate, rather than the afternoon or night shift loading. That provision is necessary because an afternoon or night shift can be worked on any day of the week. The provision clarifies the rate that is paid when an afternoon or night shift is worked on the weekend. [27] Applying this logic to the notes which appear under clause 30.5 of the Agreement, I do not consider the notes are intended to indicate that a night shift cannot be worked on the weekend. To the contrary, the note states: “Afternoon and night shifts worked on a Saturday and Sunday are counted in the percentage of the Saturday or Sunday shift in the above table.” This confirms that a night shift worked on the weekend is still classified as a night shift, the note just clarifies whether the night shift is counted in the table as a night shift or a weekend shift. Further, the note is directed at whether night shifts “worked” are to be counted as night shifts or weekend shifts, the note is not directed at the calculation of how many night shifts can possibly be worked during a roster cycle. [28] I consider EDI Rail has potentially misunderstood the intent of the example which has been included in clause 30.5(g) of the Agreement. EDI Rail has interpreted the reference to a maximum of 20 night shifts over a 4-week period to mean that only night shifts worked from Monday to Friday are included in the calculation of total possible night shifts. However, I think the figure of 20 possible night shifts has been used because that is the maximum number of 7.6- hour night shifts an employee can work during a 4-week roster cycle. I consider EDI Rail’s significant reliance on its understanding of the example in relation to how clause 30.5(g) should be interpreted may therefore be misplaced. [29] I prefer the AMWU’s construction of clause 30.5(g) because it is consistent with the ordinary meaning of the words used and the industrial purpose of the provision. The maximum number of 12-hour night shifts that Mr Peach could possibly work in a 12-week roster cycle is 38. That figure would be reached if Mr Peach worked night shift 100% of the time. When weekend night shifts are excluded, Mr Peach works night shifts for 39% of his ordinary hours over the 12-week roster cycle. Mr Peach works more than 25% of his actual shifts on night shift. [30] In contrast, EDI Rail’s interpretation requires the actual shifts worked to be determined based on the reality of the employee’s roster pattern, but then the divisor is a notional figure of five night shifts from Monday to Friday, even for an employee working 12-hour shifts. The problem with EDI Rail’s interpretation is that Mr Peach cannot possibly work 60 x 12-hour shifts from Monday to Friday during the 12-week roster cycle. That would require the working -- 6 of 8 -- [2026] FWC 876 7 of 720 ordinary hours from Monday to Friday, plus any ordinary hours worked on the weekend. Those hours cannot be worked because the maximum ordinary hours permitted for a 12-week roster cycle under clause 23.1(b) of the Agreement is 456 hours. The use of a standard notional figure is also inconsistent with the words used in clause 30.5(g). The clause refers to “the total number of possible shifts the Employee can work” (my emphasis). This suggests the calculation requires attention to the actual working arrangements of each employee, and not the application of a standard notional figure. [31] I consider the industrial purpose of the provisions in clause 30.4 and 30.5 of the Agreement is to allow for the payment of a simple Annual Rate for shift workers, rather than a base rate with separate loadings, penalty rates, and allowances. The Annual Rate is calculated in a manner that means it does not need to be recalculated on every occasion that rosters are changed. That is presumably because amounts have been included in the Annual Rate to compensate employees for working afternoon and night shifts, including on the weekend. A review is only required when the percentages in the table are exceeded for a type of shift, presumably because the Annual Rate may not be sufficiently high to compensate employees if the relevant percentage is exceeded. It appears night shifts worked on a Saturday or Sunday are counted as weekend shifts for the purposes of the table because these shifts attract the higher weekend penalty rates, regardless of whether a day or night shift is worked. [32] I consider the purpose of the provisions favours an approach whereby the divisor for the required calculation is determined by the shift roster worked by an employee and not a notional figure that does not reflect the practical reality of the hours worked. That is because the provisions are directed at ensuring that employees are not disadvantaged by the payment of an Annual Rate compared to the loadings, penalties, and allowances they would otherwise receive for working the relevant roster cycle. The calculation of financial disadvantage cannot be undertaken on a notion level, it must have regard to the shifts worked by an employee and what entitlements they would have received if they were not paid the Annual Rate. [33] Subject to the required calculation being worded the wrong way around in clause 30.5(g), I consider the clause has a clear and unambiguous meaning. The clause requires the total possible shifts an employee can work in the relevant roster cycle to be determined based on the shifts the employee works, not a notional figure. That figure is the divisor for the calculation. The dividend is the actual number of night shifts worked over the cycle, minus night shifts worked on the weekend, which are counted as weekend shifts. For Mr Peach, I consider the correct calculation is: 15 actual night shifts ÷ 38 possible 12-hour shifts during the 12-week roster cycle x 100 = 39.5% of night shifts. [34] EDI Rail argued there is a common understanding between the parties to the effect that EDI Rail’s interpretation of clause 30.5(g) is the agreed and intended interpretation. However, the Full Bench in AMWU v Berri Pty Limited5 pointed out that the absence of a complaint or common inadvertence is insufficient to establish a common understanding. Further, this dispute has arisen following EDI Rail’s decision to implement a new roster pattern in around June 2025, which was well after the Agreement was voted up by the relevant employees in 2023. I do not consider a failure by the AMWU to contest EDI Rail’s approach to the calculation required by clause 30.5(g) in relation to different previous roster patterns is sufficient to establish a common -- 7 of 8 -- [2026] FWC 876 8 understanding about the meaning of the clause. Further, given the calculation is somewhat complicated, it is also reasonably likely that confusion from the AMWU about the correct approach to the calculation caused its previous failure to contest EDI Rail’s interpretation, rather a mutual understanding that EDI Rail’s approach was correct. Mr Peach’s evidence is consistent with that explanation. [35] The dispute is resolved by arbitration in accordance with this decision. The consequence of my decision is that EDI Rail is required to review the Annual Rate of Mr Peach and other employees working the same 12-week roster cycle in accordance with clause 30.4(f) of the Agreement. [36] I note my decision has not involved an assessment of whether the 12-week roster cycle being worked by Mr Peach and other employees is safe. My decision has necessarily been confined to the dispute about what calculation is required by clause 30.5(g) of the Agreement. COMMISSIONER Appearances: Ms S Trimby representing the AMWU. Ms J Tinsley from Kingston Reid representing EDI Rail. Hearing: 2026. 5 March. Via video. Printed by authority of the Commonwealth Government Printer <PR797708> 1 (2018) 280 IR 191 at [197]. 2 This sub-clause appears to flow on from clause 30.4(f) but it appears below clause 30.5. In any event, nothing substantive turns on whether it is called clause 30.4(g) or 30.5(g). 3 Exhibit R1 at [45]. 4 Exhibit R1 at [45]. 5 [2017] FWCFB 3005 at [114] at Principle 15. -- 8 of 8 --