(AG2020/3270) [2021] FWC 4147

1 (AG2020/3270) DEPUTY PRESIDENT BEAUMONT PERTH, 15 JULY 2021 Application for variation of the Applus Pty Ltd Western Australia, Northern Territory and Queensland NDT Enterprise Agreement 2019 – 2022 – s.217 – Bianco. 1 INTRODUCTION [1] This decision concerns an application for the variation of an enterprise agreement known as the Applus Pty Ltd Western Australia, Northern Territory and Queensland NDT Enterprise Agreement 2019-20221 (the Agreement). [2] The application was made under s 217 of the Fair Work Act 2009 (Cth) (the Act) by Applus Pty Ltd (Applus). The Agreement is a single enterprise agreement which was approved on 18 June 2019 and came into operation on 25 June 2019. Applus purports that the Agreement contains ambiguities or uncertainties in relation to two matters: a) the ordinary hours of work for shift workers; and b) whether 36 hours or 40 hours must be worked in order to accrue 4 hours towards an RDO (rostered day off). [3] By its application to the Commission, Applus seeks to have several clauses of the Agreement varied to address the abovementioned ambiguities or uncertainties. These include clauses 5, 18 and 19 of the Agreement. However, of particular relevance is clause 18.1 which appears to be the source of most consternation, it reads: 18.1 Ordinary Hours of Work (a) Subject to this Agreement, the ordinary hours of work will average thirty six (36) per week over a defined work cycle. 1 [2019] FWCA 4204. [2021] FWC 4147 DECISION Fair Work Act 2009 s.217 - Application to vary an agreement to remove an ambiguity or uncertainty Applus Pty Ltd -- 1 of 28 -- (b) The ordinary hours of work may be worked on any day (Monday to Friday inclusive). (c) Subject to sub-clause (d) below, the ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the Company between 6.00 am and 6.00 pm. No more than eight (8) ordinary hours may be worked in any one (1) day. (d) Any work performed outside the spread of hours is to be paid for at overtime rates. Any work performed by an Employee prior to 6.00am or after 6.00pm will be paid in accordance with clause 19.1(c), except where clause 18.2 applies. [4] Applus concedes it is plain enough that clause 18.1 defines what are ‘ordinary hours of work’ by reference to: (a) 36 hours per week averaged over a ‘defined work cycle’; (b) a span of hours in the course of a day; and (c) days of the week on which ordinary hours may be worked. However, what it says is not plain, and what the ambiguity or uncertainty relates to, is: (a) whether clause 18.1, being ‘Subject to this Agreement’, applies to shift workers described in clause 18.2; and (b) whether the ‘ordinary hours of work’ as described in clause 18.1 merely delineate and define the rates of pay applicable to hours actually worked, or whether they dictate hours that must ordinarily be worked. [5] Because clause 18.2 of the Agreement includes several subclauses and is over a page in length, it is attached as an annexure to this decision (see Annexure A). [6] According to Applus, the intention of the Agreement gleaned from the context of the Agreement as a whole and the circumstances known to the employees and Applus at the time that the Agreement was made, is that clause 18.1 operates to: (a) not apply to shift workers or when clause 18.2 applies; or (b) alternatively, limit ‘ordinary hours’ to a maximum number of ordinary hours beyond which overtime, and penalty rates are payable. [7] Insofar as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the Union) was involved, it had applied to be heard concerning the application. On 19 March 2021, I permitted that to occur for the reasons set in Applus Pty Ltd.2 I do not intend to repeat those reasons here. However, briefly stated, a dispute between the Union and Applus had evolved since May 2020 when Mr Cochrane, an Organiser with the Union, informed Applus there was a potential issue with the hours of work and how they were calculated on rosters that included ‘R&R’. [8] The Union has an extensive history of negotiating enterprise agreements with Applus. And yet, in that period, the issues identified regarding clause 18.1 had never arisen. Come May 2020, the Union identified a problem specific to Applus’ rostering practices for its ‘KGP employees’. Namely, the company’s rostering practices were inconsistent with clause 18.1 of the Agreement because the rosters were not affording full- time employees an average of 36 ordinary hours per week over the four-week work cycle. 2 [2021] FWC 1529. -- 2 of 28 -- 3 Framed another way, the Union held the view that clause 18.1 required Applus to provide employees with an average of 36 ordinary hours per week and that those ordinary hours could only be worked between 6.00am and 6.00pm Monday to Friday with only eight ordinary hours per day being worked. [9] While the parties took steps to resolve the aforementioned dispute, they were unsuccessful. It appears that the Union issued Applus with a formal notice of dispute as per clause 24 of the Agreement on 18 September 2020.3 However, what should be apparent by now is that the application on foot is not one about a dispute under the Agreement. Instead, it centres on Applus’ application to vary the Agreement under s 217. [10] Section 217 of the Act empowers the Commission to vary an enterprise agreement made under Part 2-4 of that Act, it reads: 217 Variation of an enterprise agreement to remove and ambiguity or uncertainty (1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following: (a) one or more of the employers covered by the agreement; (b) an employee covered by the agreement; (c) an employee organisation covered by the agreement. (2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement. [11] An authority that will often be referred to in this decision is that of the Full Court of the Federal Court in Bianco Walling Pty Ltd v CFMMEU4 (Bianco). The Full Court observed that the Commission may exercise the power of variation granted by s 217 only for the purpose of removing ‘an ambiguity or uncertainty’. Moreover, the Commission could only exercise the power on the application by identified persons, one of whom is the employer covered by the agreement. It is uncontentious that the application was brought by the ‘employer party’ to the Agreement. [12] For reasons that follow I have decided not to vary the Agreement. I am not satisfied that there are ambiguities or uncertainties in relation to the two matters identified by Applus, namely: a) the ordinary hours of work for shift workers; and b) whether 36 hours or 40 hours must be worked in order to accrue 4 hours towards an RDO (rostered day off). 3 Witness Statement of Jade Cochrane dated 8 December 2020 (Cochrane December 2020 Statement) [47] Annexure JC-7. 4 [2020] FCAFC 50 (‘Bianco’). -- 3 of 28 -- 2 BACKGROUND [13] To better understand the purported issues arising from clause 18.1 and the implications these may have, a brief overview of Applus’ operations and its history of bargaining is provided. 2.1 Applus’ operations [14] Applus essentially provides testing, inspection and certification services of capital assets and infrastructure operated by its clients. The services are provided principally in the industries of oil and gas, construction, and mining.5 Its workforce comprises of approximately 450 employees working across Australia, from onshore operational locations such as Perth, Karratha, Darwin, Brisbane, Geelong, Adelaide, to offshore operational locations on the North West Shelf of Western Australia, the Bass Strait and the Timor Sea.6 2.2 Employees covered by the Agreement [15] The employees covered by the Agreement perform non-destructive testing (NDT). This is a form of technical testing of structures, pipelines, and welds (for example) undertaken either as part of the fabrication or construction process, or once a facility asset is in service.7 Some work is performed in Applus’ workshop, but according to Applus most of its clients require technicians to attend facilities which are in service, onshore and offshore.8 Therefore, a majority of the NDT work is performed at client sites.9 [16] Applus’ biggest client is said to be Woodside Energy Limited (WEL).10 It services WEL’s onshore and offshore facilities, with a team of 12 employees covered by the Agreement who are dedicated to the Karratha Gas Plant (KGP). In addition to the KGP employees, Applus has Agreement-covered employees servicing the Pluto Gas Plant and WEL’s offshore fixed and floating offshore facilities, in addition to employees based at local Applus workshops who service Applus clients in the metropolitan areas of Perth and Darwin.11 2.3 Work arrangements and rostering [17] Applus’ employees may work entirely workshop based or have work assignments which see them moving between being in the workshop and working away. These employees typically reside in Perth or live close to an Applus office. However, when working away, the employees may fly to site for one day to carry out NDT, then fly out from the site the next day. Alternatively, they could be rostered for a week on site, or two weeks or more, before returning home.12 5 Statement of Agreed Facts (SOAF) [1]. 6 SOAF [3]. 7 Witness Statement of Tegan West (West Statement) [6]. 8 West Statement [7]. 9 Ibid. 10 West Statement [10]. 11 West Statement [11]. 12 West Statement [17]. -- 4 of 28 -- 5 [18] Employees who work on a variety of client sites on an ad hoc basis have their work schedules arranged by the use of a software application. As some employees’ work is more responsive to client needs, these employees will travel to site for a particular assignment. To ensure that these employees receive enough hours of work, their hours are tracked by a supervisor and the company’s payroll team. When not on site, they default to working in the workshop.13 [19] However, other employees exclusively perform site based work and therefore do not have to be in Perth.14 They can mobilise from their home State directly to site, and are not required to attend Applus’ offices.15 These latter employees, who are dedicated to certain assets, such as KGP, have their flights pre-booked up to a year in advance in order to secure travel and accommodation.16 These employees work what is essentially a fixed roster.17 At the KGP site the roster is 14 days on and 14 days off. It is said that any other roster pattern for employees dedicated to this facility would be an exception to this general rule.18 Applus tendered rosters over a period of several years to demonstrate the use of the 14 day on and 14 day off roster.19 [20] Insofar as working hours are concerned, it was Applus’ evidence that the employees working away from home were paid for no less than ten hours per day, in accordance with clause 18.6(b) of the Agreement.20 [21] Currently at the KGP site, employees work 10.86 hours each day and commence their shift at 6.00am. They have a 30 minute lunch break and two paid 15 minute rest breaks.21 These shifts are worked continuously for 14 days and are therefore the same on weekends. 22 [22] According to Applus, it was uncommon for employees to remain on site outside of their rostered shift, or to work additional hours.23 There were said to be few changes made to the roster pattern, and typically the employees always worked the same shifts.24 The exception was over the Christmas and New Year where a swing shift was worked.25 [23] Applus expressed that it considered employees who worked according to a roster cycle to be ‘shift workers’. The only employees whose work was not arranged in this way 13 West Statement [30]. 14 West Statement [13]. 15 Ibid. 16 West Statement [16]. 17 West Statement [19]. 18 Ibid. 19 West Statement [20]. 20 West Statement [21]. 21 West Statement [22]. 22 Ibid. 23 West Statement [26]. 24 West Statement [27]. 25 Ibid. -- 5 of 28 -- were employees working exclusively in the workshop – who Applus considered to be ‘day workers’ because they worked between 6.00am and 6.00pm Monday to Friday.26 [24] In contrast, workshop employees typically worked an 8 hour day and were paid for 7.2 hours.27 The remaining 0.8 hour was put towards a rostered day off. These employees were said to work a 40 hour week and would occasionally start work earlier than 6.00am or work later than 6.00pm.28 [25] Ms West, a Human Resources Advisor, who had been with Applus since 2009, said that the abovementioned work arrangements had been in place at the time the Agreement was negotiated and registered, and when predecessor agreements were made. 2.4 Calculation of wages [26] Ms West said pay was calculated on a per day basis consisting of ordinary hours and penalty rate hours. This meant, said Ms West, that an employee’s pay was relatively standard across each worked fortnightly pay cycle, with increases for away work and additional hours.29 [27] Ms West said that for the crew at KGP, their roster cycle rarely fell precisely within the pay cycle fortnight even though the majority worked 14 days on and 14 days off.30 This was because these employees typically had their roster change mid-week and the pay cycle was Monday to Sunday.31 Therefore, the amount of pay fluctuated each fortnight by virtue of the employees having worked more or less shifts within the pay cycle.32 [28] Ms West gave evidence that over the period in question, there had never been any change to the way that employees working under the Agreement were paid, other than changes made in each iteration of the Agreement (i.e., as a result of an increase in wage rates and/or allowance amounts). 2.5 ‘Shift work’ and ‘ordinary hours of work’ under the Agreement [29] Clause 18.2 of the Agreement provides loadings for afternoon shifts and night shifts. However, Ms West said that in practice, not many afternoon shifts were rostered and in respect of night shifts, these were at times required in circumstances of shutdowns or if employees were performing radiography.33 [30] It was Applus’ view that those employees who performed 10.86 hour shifts on site between 6.00am to 6.00pm were shift workers who worked day shifts, not ‘day workers.’34 26 West Statement [28]. 27 West Statement [29]. 28 Ibid. 29 West Statement [32]. 30 West Statement [39]. 31 Ibid. 32 Ibid. 33 West Statement [45]. 34 West Statement [47]. -- 6 of 28 -- 7 It was the company’s view that this was uncontroversial, quite typical of the industry in which Applus operated, and was consistent with how the company’s competitors operated.35 2.6 The history of bargaining and agreements [31] It appeared uncontroversial that through the years, there had been a series of iterations of the Applus RTD Pty Ltd Western Australia, Northern Territory and Queensland NDT Enterprise Agreement 2011-2014 (2011 Agreement).36 These included: a) Applus RTD Pty Ltd Western Australia, Northern Territory and Queensland NDT Enterprise Agreement 2014-2017 (2014 Agreement); b) Applus RTD Pty Ltd Western Australia, Northern Territory and Queensland NDT Enterprise Agreement 2017-2019 (2017 Agreement); and c) Applus RTD Pty Ltd Western Australia, Northern Territory and Queensland NDT Enterprise Agreement 2019-2022 (Agreement). 2.6.1 Applus’ account [32] Ms West spoke about bargaining for various iterations of the Agreement. She said that clause 18 of the Agreement had existed in its current form substantively since at least 2014.37 Prior to then, the Agreement incorporated the Manufacturing and Associated Industries and Occupations Award 2010 (Award). That Award had, according to Ms West, included different categories of employees, such as continuous shift worker, non-continuous shift worker, day worker and so on.38 [33] When it came to bargaining for the 2014 Agreement, Ms West said that she attended the bargaining meetings as a bargaining representative on behalf of Applus – her role involved taking minutes and coordinating the meetings between the parties.39 [34] The proposed 2014 Agreement had been drafted based on the existing 2011 Agreement with Applus preparing the initial template. After the 2014 Agreement was made, the company’s operations and approach to arranging work for the relevant employees continued in the same way as they had when the Award was incorporated into the enterprise agreement, particularly with respect to the arrangement of shifts, hours of work and rosters, said Ms West.40 [35] Ms West explained that during the negotiations for the 2017 Agreement, clause 18.1(c) was amended to limit ordinary hours of work to eight per day. Ms West said that the basis for this inclusion was to better align the hours of work clause with the Award, 35 West Statement [48]. 36 Witness statement of Jade Cochrane dated 8 April 2021(Cochrane April 2021 Statement) [4], [9]. 37 West Statement [49]. 38 Ibid. 39 West Statement [50]. 40 West Statement [52]. -- 7 of 28 -- even though the Award no longer formed part of the enterprise agreement. Ultimately this was actioned for the purpose of meeting BOOT requirements.41 [36] During negotiations for the 2019 Agreement, Applus proposed to make a change to clause 18 to remove the flexibility previously provided for penalty rates not to apply for up to one hour on either side of 6.00am and 6.00pm. Ms West said that the proposed change was agreed and was consequently reflected in clause 18.1(c) of the Agreement.42 [37] Ms West observed that the arrangements for shift work and rostering did not change in practice since at least the 2014 Agreement, and had not changed as a result of amendments to clause 18 of the Agreement made during the 2017 or 2019 negotiations.43 [38] Ms West said that during enterprise agreement negotiations for the 2014 Agreement and those subsequent, there had been no significant discussion on clause 18 in the sense of there having been no claims, disputes or discussions about ordinary hours as a concept, or how ordinary hours would be worked or rostered.44 2.6.2 The Union’s account [39] Mr Cochrane expressed that the hours of work clause had changed over time in Applus’ enterprise agreements. When he commenced with the Union in or around 2012, Applus and its employees were covered by the 2011 Agreement.45 It was Mr Cochrane’s account that he was directly involved in negotiations for three subsequent enterprise agreements, namely the 2014 Agreement, 2017 Agreement and the 2019 Agreement. [40] Mr Cochrane said that on 24 September 2013, Applus emailed him a draft enterprise agreement.46 One of the claims made by Applus in this initial draft was to amend subclause 18.1(b) so that ordinary hours could be rostered on any day of the week. Mr Cochrane said that there was nothing in Applus’ draft subclause 18.1(b) that indicated that it was only intended to apply to ‘day workers’. [41] Mr Cochrane continued that the Union responded to Applus’ draft agreement by providing a log of claims,47 which amongst other matters, asked for the proposed subclause 18.1(b) to be amended so that ordinary hours for employees could only be worked on Mondays to Fridays inclusive.48 It was Mr Cochrane’s evidence that there was never any distinction between ‘day workers’ and ‘shift workers’. [42] According to Mr Cochrane, he attended a bargaining meeting with Applus on 28 January 2014.49 At that meeting the parties were said to have discussed a document titled ‘WA, NT, QLD EBA Negotiations, Proposed Amendments Selected Clauses – 28 41 West Statement [55]. 42 West Statement [57] Annexure TW-8. 43 West Statement [58]. 44 West Statement [59]. 45 Cochrane April 2021 Statement [9]. 46 Ibid. 47 Cochrane Statement April 2021[10]. 48 Ibid. 49 Cochrane April 2021 Statement [13]. -- 8 of 28 -- 9 January 2014’.50 Mr Cochrane said that at that meeting he explained to Applus that the Union wanted the proposed subclause 18.1(b) amended to reflect what was in the previous enterprise agreement (i.e. ordinary hours could only fall on Mondays to Fridays inclusive). Mr Cochrane said that Applus agreed to this. From that point on, it was an agreed item that ordinary hours could only be worked on Mondays to Fridays inclusive – consistent with the past wording.51 [43] Mr Cochrane gave evidence that: a) on 17 February 2014, he was provided with a document that confirmed that the parties had agreed to limit ordinary hours to Mondays to Fridays inclusive;52 b) on 24 February 2014, he attended a bargaining meeting with Applus and was provided with a document that outlined the changes to subclause 18.1(b) and confirmed that the Union’s request to limit ordinary hours to Mondays to Fridays inclusive was agreed; c) on 21 March 2014, he attended a bargaining meeting and Applus reconfirmed that ordinary hours would only be worked between Mondays and Fridays inclusive; d) he was also provided with a document titled “Comparison – Applus Proposed Agreement v.2 – Current WA/NT/QLD Agreement” (undated), which, in respect of clause 18.1 noted that ‘Hours of Work This is a new provision that clarifies the existing practice and organisation of work’; e) subclauses 18.1(c) and (d) of the 2014 Agreement provided that ordinary hours would usually fall within a spread of hours between 6.00am to 6.00pm and that any ordinary hours worked outside of that spread would be paid at overtime rates; and f) in the 2014 Agreement there was no general cap of 8 ordinary hours per day, the 8- hour cap only applied when an employee worked shiftwork (see clause 18.2 of the 2014 Agreement), and there was no concept of ‘day workers’ and no cap on people on day shift being limited to 8 ordinary hours per day. [44] Insofar as bargaining for the 2017 Agreement was concerned, Mr Cochrane gave a detailed chronology of the bargaining, noting that by 3 July 2017, he had been provided with a marked up version of the draft enterprise agreement by Applus.53 Mr Cochrane said that the marked-up version of the draft enterprise agreement contained explanations for changes to the agreement that had been proposed by Applus.54 Attached to his witness statement at Annexure 19, was one such draft which noted the following: 18.1 Ordinary Hours of Work … (c) Subject to sub-clause (d) below, the ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the Company between 6.00am and 6.00pm. The spread of hours (i.e. 6.00am to 6.00pm) may be altered 50 Ibid. 51 Ibid. 52 Cochrane April 2021 Statement [14] Annexure 5. 53 Cochrane April 2021 Statement [33]. 54 Ibid. -- 9 of 28 -- by up to one hour at either end of the spread, by agreement between the Company and a majority of Employees concerned or in appropriate circumstances, between the Company and an individual Employee. No more than eight (8) ordinary hours may be worked in any one (1) day. [Commented [WT36]: Clarification based on Award provisions] (d) An Employee required to work on a client site will work in accordance with the spread of ordinary hours applicable to the site. [Commented [WT37]: Non FWC BOOT compliant] [45] A final marked-up draft of the proposed 2017 Agreement was provided to Mr Cochrane on 1 September 2017, and it included the above clause, amendments and comments (see Annexure 20 to the Cochrane April 2021 Statement).55 [46] It was Mr Cochrane’s evidence that subclause 18.1(c) was modified during the negotiations for the 2017 Agreement to include a limitation that employees could only work a maximum of eight ordinary hours per day.56 He said that the limitation had previously only existed when employees worked shift work, and he had no recollection of discussing the item with Applus during negotiations.57 [47] Negotiations for the 2019 Agreement commenced in or around 8 August 2018.58 Mr Cochrane said he was sick up until November 2018, but on his return was provided with documents relating to the negotiations.59 In those documents was a letter from Applus to the Union indicating that it wished to ‘make changes to the wording of subclauses 18.1(d), 18.2 and 18.5 (f) and (g) of the 2017 Agreement’.60 At a meeting on 5 November 2018, the Union and Applus agreed to change the wording of clause 18.1(d) so that all work outside of 6.00am to 6.00pm would be paid at overtime rates, other than when clause 19 (Shift Work) applied.61 [48] In brief, Mr Cochrane noted that during the negotiations for the 2019 Agreement: a) the parties did not discuss removing or agree to remove the eight ordinary hour limitation per day for all employees; b) at no point did Applus put to the Union or its employees that it wished to be able to roster more than eight ordinary hours per day; c) the parties did not discuss removing or agree to remove the requirement that ordinary hours for all employees must fall on Monday to Friday inclusive; d) the parties maintained the reference to Saturdays and Sundays in the overtime clause of the Agreement, and Applus did not put to the Union that it wished to have ordinary hours fall on Saturdays or Sundays; 55 Cochrane April 2021 Statement [34]. 56 Cochrane April 2021 Statement [35]. 57 Ibid. 58 Cochrane April 2021Statement [38]. 59 Cochrane April 2021 Statement [40]. 60 Ibid. 61 Ibid. -- 10 of 28 -- 11 e) the parties did not discuss or agree to create concepts of ‘day workers’ and ‘shift workers’ within the 2019 Agreement; and f) the parties did not discuss giving the employees an extra four hours of RDOs per week. 3 Legislative framework and legal principles [49] As observed by the Full Court in Bianco, the exercise before me is not one of interpreting clause 18.1 in the context of the 2019 Agreement. The interpretation of a statute is said to be directed to the ascertainment of the document’s actual and true meaning, and when properly construed, there is only one correct meaning.62 Instead, the task is to identify whether the relevant provisions of the 2019 Agreement are ambiguous or uncertain, as purported by Applus. The power of variation granted by s 217 is only for the purpose of removing ‘an ambiguity or uncertainty’. [50] While the line that distinguishes them may appear somewhat blurred, the terms ‘ambiguity’ and ‘uncertainty’ are not synonymous.63 ‘Ambiguity’ is said to speak to where a provision in an enterprise agreement is capable of more than one meaning. It may be apparent on the face of the document or may become apparent only when extrinsic evidence is adduced.64 The authors of the Macquarie Dictionary have defined the word ‘ambiguity’ as: 1. doubtfulness or uncertainty of meaning … 2. an equivocal or ambiguous word or expression …65 [51] In contrast, the word ‘uncertain’ is said to refer to: 1. not definitely or surely known; doubtful. 2. not confident, assured or decided. 3. not fixed or determined. 4. doubtful; vague; distinct …66 [52] There is an evident overlap between the two terms. For example, there may be uncertainty in the terms of an enterprise agreement even when the terms of the enterprise agreement are not ambiguous.67 This can surface from the application of the unambiguous terms to a given set of circumstances.68 The Full Court in Bianco referred to this distinction as being one between patent ambiguity (linguistic ambiguity) and latent ambiguity (ambiguity in application).69 62 Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954, (2001) 109 FCR 564 [54]; Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd [2004] FCAFC 183, (2004) 139 FCR 147 [118]; Bianco [66]. 63 Bianco [73]. 64 Ibid. 65 Macquarie Dictionary (5th ed, 2009) ‘Ambiguity’ (def 1, 2). 66 Macquarie Dictionary (5th ed, 2009) ‘Uncertain’ (def 1, 2). 67 Bianco [75]. 68 Ibid. 69 Ibid. -- 11 of 28 -- [53] When ascertaining whether a clause of an enterprise agreement is affected by ambiguity or uncertainty for the purpose of s 217, the Commission is not constrained in the matters it can have regard to, as is the case when one interprets a term of an enterprise agreement to establish its meaning.70 In Bianco it was said that the Commission was obliged, in performing its functions or in exercising its powers in relation to a matter under the Act, to take into account, amongst other things, ‘equity, good conscience and the merits of the matter’.71 Further, it was not constrained by the rules of evidence and procedure in relation to a matter.72 This meant, said the Full Court, that far from being precluded from having regard to the evidence of the parties’ common intention and to the history of a clause said to be ambiguous or uncertain, the Commission was permitted to have regard to the same, in light of the matters to be taken into account, such as equity, good conscience and the merits. [54] In the circumstances before me, there are rival contentions as to whether clause 18.1 is ambiguous or uncertain. However, a disagreement about the meaning or application of a provision in an enterprise agreement is insufficient in and of itself to indicate ambiguity or uncertainty for the purposes of s 217.73 Whether there is an ambiguity or uncertainty is to be determined by objective means. This may necessitate an assessment of the matters relied upon for the competing contentions, including evidence that the ‘parties’ to the agreement had a common understanding as to the meaning of the terms used in their agreement.74 [55] In Bianco, the Full Court adopted the following passage set out by the Full Bench in Tenix, ‘the [FWC] will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced, and an arguable case is made out for more than one contention’ (underlining my emphasis).75 [56] In summary, the following principles can be extracted from Bianco: a) it is not necessary to interpret an agreement to reach the conclusion that there is ambiguity or uncertainty;76 b) the Commission need not be ‘constrained in the matters to which it may have regard by the principles developed for the interpretation of enterprise agreements’;77 c) the Commission is ‘obliged’ to take into account ‘equity, good conscience and the merits of the matter’;78 d) the Commission ‘is not bound by the rules of evidence and procedure’;79 70 Bianco [68]. 71 Ibid; Fair Work Act 2009 (Cth) s 578. 72 Bianco [68]; Fair Work Act 2009 (Cth) s 591. 73 Tenix Defence Systems Pty Limited Certified Agreement 2001-2004 [2002] AIRC 531 (‘Tenix’) [49]. 74 Bianco [70]. 75 Tenix [31]. 76 Bianco [67]. 77 Bianco [68]. 78 Ibid; see Fair Work Act 2009 (Cth) s 578. 79 Bianco [68]. -- 12 of 28 -- 13 e) the consequence is that the Commission is far from being precluded from having regard to evidence of the parties’ common intention and to the history ‘of the agreement’;80 f) ambiguity or uncertainty is to be considered objectively,81 and g) as noted in Tenix, the Commission will err on the side of finding an ambiguity or uncertainty where rival contentions are advanced, and an arguable case is made out for more than one contention.82 4 Consideration [57] To recap, Applus submitted that it was plain enough that clause 18.1 defined what were the ‘ordinary hours of work’ by reference to: a) 36 hours per week averaged over a ‘defined work cycle’; b) a span of hours in the course of a day; and c) days of the week on which ordinary hours may be worked. [58] However, in Applus’ view, what was not plain, and what the ambiguity or uncertainty related to, was: (a) whether clause 18.1, being ‘Subject to this Agreement’, applied to shift workers described in clause 18.2; and (b) whether the ‘ordinary hours of work’, as described in clause 18.1, merely delineated and defined the rates of pay applicable to hours actually worked, or whether the term dictated hours that must ordinarily be worked. [59] The Union voiced three objections to the application: a) first, clauses 18.1, 18.2, 18.3 and 19.1 of the Agreement were not tainted by ambiguity or uncertainty; b) second, if there were ambiguity or uncertainty, which it denied, the Commission ought to decline to exercise its discretion to interfere with the operation of the Agreement. The more appropriate course, said the Union, was for Applus to work with employees to find an agreed solution to any issues in the workplace; and c) third, if the Commission was minded to interfere with the operation of the Agreement, it should not do so in the manner sought by Applus. This was because Applus’ suggested amendments went beyond removing uncertainty and ambiguity and instead moved to change the fabric of the deal struck when the Agreement was made. 80 Ibid. 81 Bianco [70]. 82 Ibid. -- 13 of 28 -- 4.1 Ambiguity or uncertainty? 4.1.1 Applus’ submissions [60] Applus clearly considered that clause 18.1 involved both ambiguity and uncertainty in its operation. It said that both were apparent on the face of the clause in its context. [61] Referring to the ubiquitous appearance of the notion of ‘ordinary hours of work’ in both industrial agreements and legislation, Applus argued that it would be an error to treat any reference to ‘ordinary hours of work’ in an industrial instrument or legislation as having a plain and ordinary meaning and a certainty in application, regardless of context. Applus noted that the phrase, similar phrases, and their corollary ‘ordinary time’ earnings, had been considered in many authorities with differing outcomes depending on context.83 [62] When it came to the judicial consideration of the phrase, Applus observed that the contest was most frequently between a choice of ‘a meaning referrable to standard hours to be paid at ordinary rates, and a meaning referable to the regular, customary, normal or usual hours worked by each individual employee’.84 Applus said that this was because the ultimate question in those authorities had typically been the method of calculation of entitlements referable to ordinary hours of work. In this respect, Applus referred to what was said in BlueScope Steel:85 The context is the payment of salaries and wages in the workplace. In that context, the word ‘ordinary’ and the phrase ‘ordinary hours’ have assumed different meanings depending on context and circumstance. There are circumstances and contexts where the word and phrase can be seen to refer to regular, normal, customary or usual hours; and there are circumstances or contexts where the word and phrase can be seen to refer to the hours of work referred to in applicable industrial instruments as standard hours to be paid at ordinary rates, as opposed to additional hours (even if required, usual, regular, normal or customary) and paid at a special or high rate. As such, the word and phrase can be seen to reflect the long- recognised distinction between ordinary hours of work and overtime: cf Thompson v Roche Bros Pty Ltd [2004] WASCA 110 [31]. [63] Drawing upon the analysis in BlueScope Steel, Applus pressed that the case pointed to a distinction between ordinary hours as a notional concept, and ordinary hours as a determinant of actual working patterns. [64] To further illustrate the point, Applus quoted the passage from Thompson v Roche Bros Pty Ltd (Thompson) at paragraphs [22]-[24], where consideration was given to whether overtime typically worked by an employee was to be taken into account in determining the rate of payment of workers’ compensation payments. In short, the pertinent point of Thompson appeared to be in the following passage: …Hence, there has developed a particular usage of the term overtime as applying to work performed outside conventional hours or in excess of conventional hours or in excess of conventional hours regardless of whether or not there is an 83 See Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union [2019] FCAFC 84…. [authorities list at [33] and following]. 84 Ibid [33]. 85 Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union [2019] FCAFC 84 [38]. -- 14 of 28 -- 15 obligation to the employee to work those hours or whether those are the only hours worked by that employee and therefore, while unconventional, they are nevertheless that employee’s regular or ordinary working hours. From this pattern of development the original distinction between ordinary working hours and voluntary overtime is often ignored and consequently there is a usage which refers to an employee’s obligation to work overtime. This may mean an obligation to work for longer than conventional working hours each week or it may mean an obligation to work unusual hours such as on night shifts or at weekends or on other holidays… [65] Applus contended that the observations in Thompson demonstrated how uncertainty arises around the character of ‘ordinary hours’ as they are referenced in any particular industrial instrument. Expanding upon this point, Applus spoke of how the phrase might operate such that it was not confined to how entitlements referable to ordinary hours were to be calculated, but also what the reference to ordinary hours means for the obligation on employees to work such hours, and the corresponding obligation on an employer to provide work and pay for those hours. [66] Applus discussed two potential meanings that could be attributed to term ‘ordinary hours of work’ in clause 18.1. Although, it correctly conceded the construction of the clause, that is the ascertainable meaning, was not in issue insofar as the application on foot was concerned. The first meaning, said Applus, was perhaps an agreement as to the notional hours which are to be used in calculating entitlements referable to the notion of ordinary hours (annual leave, overtime and penalty rates etc.). The second meaning, said Applus, may dictate the hours that must usually be worked by employees. [67] Insofar as the Agreement was ambiguous and uncertain, Applus said that this was apparent on the face of the Agreement and there was no need to have recourse to any extrinsic evidence to find an ambiguity or an uncertainty. [68] Aside from the ambiguity relating to whether clause 18.1 designated nominal hours for the purpose of calculating entitlements or whether it dictated a pattern of work, a further uncertainty was said to be whether the clause was confined in its application to employees who did not work shift work or whether it applied to all employees. [69] Applus traced through this difficulty as follows: a) it was apparent from clause 18.2 that the Agreement contemplated rostered shifts, and that employees would, as a matter of fact and actuality, ordinarily work hours that were not ordinary hours described in clause 18.1; b) clause 18.1 was expressed as being ‘Subject to this Agreement’, and therefore it was open to construe this clause including subsequent clause 18.2 (given the context), as being confined in its application to employees who did not fall within clause 18.2 or to construe it as applying to all employees; c) clause 18.5 referred to ‘Rostered Days Off’, and provided an ordinary working week consists of 36 ordinary paid hours and a maximum of 4 hours accrued to a Rostered Day Off (RDO) at the ordinary hourly rate; and -- 15 of 28 -- d) there was uncertainty as to whether clause 18.5 was intended to align with clause 18.1, and incorporate a concept of averaging or not, and whether the 4 hours accrued were worked or not, and if worked, whether they were also ordinary hours. [70] For the purpose of determining both whether to, and how to, vary the Agreement, Applus advanced submissions on the objectively ascertainable intention of both the ambiguous and uncertain clauses. In doing so, Applus clarified it had not referred to or relied upon the evolution of the ‘Hours of Duty’ clause in the Agreement, the bargaining for the Agreement or the predecessor agreements, because the ambiguity and uncertainty was inherent in the relevant clauses in every iteration in the predecessor agreements (despite some minor alterations to the relevant clauses over time).86 [71] Applus thereafter outlined various clauses and their context, and drew the conclusion there was ample indication from the context of the Agreement that clause 18.1 was intended to operate primarily to provide a basis for calculating the hourly rates that will apply to work performed at particular times, and not to oblige employees to work a minimum number of ordinary hours or the employer to pay for a minimum number of ordinary hours. [72] Reference was also made to the historical working arrangements that the business had adopted at the time the Agreement was registered and when the predecessor agreements were registered. Applus provided a synopsis of its evidence in this respect noting: a) its NDT work, which was covered by the Agreement, was performed at various workshops and at clients’ offshore and onshore sites, with Applus’ principal clients operating their respective facilities 24 hours a day, seven days a week, as standard practice in the oil and gas industry; b) the majority of NDT work is carried out at client sites; c) a number of employees covered by the Agreement work exclusively from Applus premises between the hours of 6.00am and 6.00pm Monday to Friday; d) another group of employees covered by the Agreement move between site- based work and workshop-based work; e) rosters from the different client sites aligned with the client operations, which usually involved longstanding and consistent shift roster arrangements; f) there are employees covered by the Agreement who worked on client sites that have an essentially ‘fixed’ roster of 14 days on, 14 days off (or 3 weeks on/3 weeks off), fly-in/fly-out or drive-in/drive out; g) site based employees generally commence their shift at 6.00am. They have a 30-minute lunch break and two paid 15-minute ‘smokos’ (rest breaks) and work 10 to 12 hour consecutive shifts including on weekends; 86 West Statement [49], [52], [53]; Alessandrino Statement [37], [38]. -- 16 of 28 -- 17 h) afternoon shifts as described in clause 18.2 of the Agreement are rarely utilised in practice, albeit night shifts are occasionally worked; i) employees’ pay is calculated on a daily basis, based on the actual hours worked at ordinary rates of pay and the actual hours worked at penalty rates. Where employees are required to work an afternoon or night shift, they are paid a shift loading of 15% for 8 hours of work in a day and overtime rates thereafter; j) there had been no change to the working hours arrangements in relation to rostering or payment of hours worked either at the inception of the first enterprise agreement that covered the employees in 2011 (incorporating relevant parts of the Award), nor when the enterprise agreement was expressed as superseding the Award, or following any other changes to the hours of work provision of the successive enterprise agreements; k) in order to meet an average of 36 hours ordinary hours worked within the context of rostered shiftwork, (of 10.86 to 12 hour shifts) employees would have to work 25 days on with three days off within a 4 week roster cycle; l) employees would never be able to work an average of 36 ordinary hours per week (as defined in clause 18.1) over the period of four weeks worked 14 on/14 off, nor over a period of six seeks worked 21 on/21 off; and m) prior to the Union raising its contention that clause 18.1 meant there was a ‘gap’ in ordinary hours as described in that clause for shift workers in May 2020, no employee had complained that they had not received sufficient ordinary hours per roster cycle or been paid incorrectly by reference to clause 18.1. [73] Applus submitted that it had been well established that a significant proportion of its workforce worked on fly-in/fly-out shift rosters aligned with the shift rosters in place for Applus’ clients. Those same rosters, did not, and had never, said Applus, involved the working of an average of 36 ordinary hours per week as described in clause 18.1, nor the payment of an average of 36 ordinary hours as described in clause 18.1. The roster had however, always involved: a) hours ‘usually’ worked equally or exceeding an average of 36 hours per week over a span of more than 8 hours per day, outside the span of hours specified in clause 18.1 and on weekends; and b) remuneration calculated on the basis that hours worked outside the scope of ‘ordinary hours’ described in clause 18.1 are compensated for at shift penalty rates and overtime rats of pay. [74] Applus pressed that relevant to the Commission’s consideration were the commercial circumstances when the Agreement was registered, including the industry rates of pay, patterns of hours and the role of Applus’ labour costs in determining its competitiveness. Insofar as providing supporting evidence of these circumstances, Applus relied on the following: -- 17 of 28 -- a) its objective in bargaining for the Agreement was to enhance its competitivity in comparison with its competitors through control of labour costs;87 b) its ordinary rates of pay were on the high side of comparable when compared with its competitors;88 c) Applus’ competitors roster employees on similar or the same shift patters as Applus’ employees and are only obliged to pay those employees for the hours actually worked; and d) Applus’ clients would not entertain 5-day work arrangements or other than corresponding shifts.89 [75] It submitted that the preceding evidence provided further reason to consider the intention of the Agreement regarding clause 18.1 was: (a) not to dictate the hours to be actually or usually worked by the workforce; (b) not to apply as a barrier to flexibility in rostering; and (c) not to arbitrarily or absurdly inflate labour costs, particularly by requiring payment for hours not in fact worked or required to be worked. 4.1.2 The Union’s submissions [76] The Union announced that clause 18.1 was neither ambiguous nor uncertain. [77] Focussing on clause 18.1, the Union said that Applus had claimed that clause 18.1 of the Agreement was ambiguous or uncertain because it restricted ‘shift workers’ to a maximum of eight ordinary hours per shift, prevented ordinary hours from falling on weekends, and limited ordinary hours to 6.00am and 6.00pm on Monday to Friday. According to the Union, Applus had claimed that those restrictions were not intended to apply to ‘shift workers’. [78] The Union further observed that in relation to the issue identified with the ‘RDO’ clause at clause 18.5, Applus had provided no meaningful explanation about the problems with the clause or why it should be changed. [79] Referring to the evidence of Mr Cochrane, the Union submitted that during the negotiations for the Agreement, and its predecessors, there had never been a labelling of workers as ‘shift workers’ or ‘day workers’. This was reflected in the terms of the Agreement, which, said that Union, referred to neither ‘shift worker’ nor ‘day worker’, except for the annual leave provision at clause 20. [80] In the Union’s view, the structure and wording of clause 18.1 of the Agreement suggested that it applied to all of Applus’ employees. It observed that under subclause 18.1(a), full-time employees work an average of 36 ordinary hours per week over a defined work cycle. This limitation was not confined to ‘day workers’ or ‘shift workers’. The Union submitted that clause 18.1 applied to everyone, and if that was accepted, then it 87 West Statement [56]. 88 Witness Statement of Adam Alessandrino (Alessandrino Statement) [41]. 89 Alessandrino Statement [40], [42]. -- 18 of 28 -- 19 was axiomatic that the other subclauses in clause 18.1 also applied to all employees. Unless there was an express exception to a particular subclause in clause 18.1. [81] The Union explained that there was nothing in the Agreement that demonstrated that the parties intended certain parts of clause 18.1 to only apply to certain classes of employees – especially in circumstances where the parties had made no mention anywhere of employees being split into classes of either ‘day workers’ or ‘shift workers’. [82] Concerning the payment of penalty rates, the Union submitted that clause 18.2 set out a range of circumstances where employees were entitled to be paid penalty rates. Much like clause 18.1, clause 18.2 did not discriminate between classes of employees. The Union argued that the provision did not purport to only apply to ‘shift workers’, noting that the clause did not distinguish between classes of employees that Applus wished now to create and label as either ‘day workers’ or ‘shift workers’. [83] The Union expressed that to the extent that Applus suggested that there was an ambiguity or uncertainty in the Agreement because it did not distinguish between ‘day workers’ and ‘shift workers’, the Commission ought to reject the argument. It observed that there was no evidence that the parties intended to create such a distinction when they made the Agreement. [84] Next, the Union referred to subclause 18.1(b) which provides that ordinary hours for all employees will fall within Mondays to Fridays inclusive. The Union observed that Applus had asked the Commission to vary clause 18.1(b) so that the limitation only applied to Applus’ new concept of ‘day workers’. The Union highlighted that Applus was aware that the limitation in subclause 18.1(b) applied to all its employees because during the negotiations for the 2014 Agreement, Applus had attempted to remove the Monday to Friday limitation from the hours of work clause.90 The Union referred to its evidence that in Applus’ log of claims for the 2014 Agreement, it wanted ordinary hours to be able to fall on any day of the week, but the Union opposed the claim during bargaining, and the claim was withdrawn, and the 8-hour limitation on ordinary hours in clause 18.1(b) was retained. [85] In respect of Applus’ motivations on this front, the Union claimed that Applus was seeking to obtain a benefit that it asked for during the negotiations of the 2014 Agreement, but ultimately agreed to waive it before making the 2014 Agreement. [86] According to the Union, there was nothing ambiguous or uncertain about the ordinary hours having to fall on Monday to Fridays inclusive. It was a straight-forward requirement, and one that the parties had agreed to during consecutive rounds of bargaining. [87] Thereafter, the Union referred to Applus’ contention that subclauses 17(b), 18.2(e) and 18.3 supported Applus’ claim that ordinary hours could fall on a Saturday or Sunday. The Union responded that the argument flew in the face of concessions that Applus made during the 2014 negotiations. [88] It noted that subclause 17(b) provided for a definition of the term ‘Ordinary Time Earnings’, and the wording of that definition predated the 2014 Agreement. The definition 90 Cochrane April 2021 Statement [9] (Attachment 1). -- 19 of 28 -- was buried in clause 17 and was not replicated in clause 5. The Union said that the internal context of subclause 17(b) made it clear that the definition was only intended to apply for the purpose of calculating what work should attract superannuation contributions. Therefore, given its specific and niche location within the Agreement, subclause 17(b) ought to be read as being subservient to the express provisions in clause 18.1 of the Agreement. The Union continued that subclause 19.1(d) of the Agreement made it crystal clear that all work on Saturday and/or Sunday was intended to be overtime (i.e. not ordinary hours). If there was an ambiguity or uncertainty, it existed in subclause 17(b), and not subclause 18.1(b). [89] The Union concluded in this respect that there was nothing in the Agreement that prevented Applus from working employees on weekends noting that the limitation in subclause 18.1(b) only prevented ‘ordinary hours’ from falling on a weekend. The Union said that subclause 18.2(e) and clause 18.3 of the Agreement could be read harmoniously with subclause 18.1(b) because neither clause suggested that ‘ordinary hours’ could fall on a Saturday or Sunday. The Union submitted that they simply provided for the types of payment that Applus needs to make if an employee works on Saturday or Sunday (or Public Holiday). [90] Concerning the cap of no more than eight ordinary hours on any day, the Union observed that there was no eight-hour limitation on ordinary hours in clause18.1 of the 2014 Agreement. In this case, the circumstances were such that Applus had sought to implement the eight-hour limitation as part of clause 18.1 to provide clarification based on the Award provisions. [91] Insofar as there was a purported ambiguity or uncertainty with the RDO clause, the Union briefly state there was no such ambiguity or uncertainty. 4.1.3 Is there an ambiguity or uncertainty? [92] Before exercising its discretion to vary an agreement pursuant to s 217, the Commission must first identify whether there is an ambiguity or uncertainty in a provision or provisions. The presence of ambiguity or uncertainty is a jurisdictional prerequisite to the exercise of the discretion to vary the instrument. The Commission must make a positive finding as to whether the relevant provisions of the agreement are ambiguous or uncertain, based on an objective assessment of the meaning of the words in question, construed in context. That context may include the reading of the agreement as a whole with a view to identifying whether an ambiguity or uncertainty arises in a clause when the clause is examined in light of other clauses with which it relates, operates or interacts. [93] If an ambiguity or uncertainty is identified, the Commission must then consider whether to exercise its discretion to vary the agreement. An application under s 217 is not concerned with substantive change to an agreement. A decision of the Commission under s 217 to remove uncertainty or ambiguity should give effect to the substantive agreement that was ambiguously or uncertainly reduced to writing in the terms of the enterprise agreement. [94] Clause 18.1 is set out in full at paragraph [3] of this decision. However, it is timely to repeat it: 18.1 Ordinary Hours of Work -- 20 of 28 -- 21 a) Subject to this Agreement, the ordinary hours of work will average thirty six (36) per week over a defined work cycle. b) The ordinary hours of work may be worked on any day (Monday to Friday inclusive). c) Subject to sub-clause (d) below, the ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the Company between 6.00 am and 6.00 pm. No more than eight (8) ordinary hours may be worked in any one (1) day. d) Any work performed outside the spread of hours is to be paid for at overtime rates. Any work performed by an Employee prior to 6.00am or after 6.00pm will be paid in accordance with clause 19.1(c), except where clause 18.2 applies. [95] In my view, clause 18.1 of the Agreement is not ambiguous. [96] As Applus identified, clause 18.1 defines what are ‘ordinary hours of work’ by reference to: (a) 36 hours per week averaged over a defined work cycle; (b) a span of hours in the course of a day; and (c) days of the week on which ordinary hours may be worked. The first three subclauses are parameter setting. In my view, those parameters are clear and succinct, no ambiguity arises in this respect. [97] However, Applus submitted that what was not plain and where there was ambiguity or uncertainty, was with the phrase ‘Subject to this Agreement’, the phrase used at the start of the first subclause in clause 18.1. Applus asked the question of whether clause 18.1, being ‘Subject to this Agreement’, applies to shift workers described in clause 18.2. [98] I do not consider that there is anything ambiguous about the phrase ‘Subject to this Agreement’ in this context. Clause 18.1(a) simply informs the reader, by the use of the phrase, that the clause (18.1) is not a standalone clause but operates in light of other clauses in the Agreement. [99] Further, I do not consider that the use of that same phrase gives rise to any uncertainty. As noted, uncertainty may arise from the application of an unambiguous term to a given set of circumstances.91 Applus submits it is unclear whether clause 18.1 applies to shift workers described in clause 18.2, yet I observe no words in clause 18.1 that limit its operation to that effect. As it is, subclause 18.2(b) makes reference to ‘ordinary hours’ in the context where an employee who works night or afternoon shift will be paid a 15% loading on ‘ordinary hours’ worked during such shift. Clause 18.2 sets out to make provision for the particular circumstance where ‘ordinary hours’ form part of an afternoon or night shift. To discern what constitutes the ‘ordinary hours’ in that circumstance, one turns to clause 18.1 where the parameters are clearly set. [100] The Union had noted that subclause 18.1(b) provided that ordinary hours for all employees will fall within Mondays to Fridays inclusive. It observed that Applus had asked the Commission in its application to vary subclause 18.1(b) so that the limitation 91 Bianco [75]. -- 21 of 28 -- only applied to Applus’ new concept of ‘day workers’. The Union had observed that Applus was seeking to have imported into the Agreement the concepts of ‘day worker’ and ‘shift worker’. [101] The Union highlighted that Applus was aware that the limitation in subclause 18.1(b) applied to all its employees covered by the Agreement because, during the negotiations for the 2014 Agreement, Applus had attempted to remove the Monday to Friday limitation from the hours of work clause.92 The Union referred to Applus’ log of claims for the 2014 Agreement, where it wanted ordinary hours to be able to fall on any day of the week. The claim was opposed by the Union during bargaining, and it was ultimately withdrawn while the eight-hour limitation on ordinary hours in subclause 18.1(b) was retained. [102] The evidence of both parties and the plain language of the subclauses in the context of the Agreement as a whole, is indicative of there being no ambiguity or uncertainty arising from the phrase ‘Subject to this Agreement’. [103] The extent of the purported ambiguity or uncertainty with clause 18.1 did not, according to Applus, rest there. Applus submitted that it was not plain whether the ‘ordinary hours of work’ as described in clause 18.1 merely delineated and defined the rates of pay applicable to hours actually worked, or whether it dictated hours that must ordinarily be worked. Ambiguity or uncertainty therefore arose in such circumstances. However, for the following reasons, I do not agree. [104] I have observed that the first three subclauses of clause 18.1 set the parameters for the ‘ordinary hours of work’. [105] Evidence was given that during bargaining Applus sought to add a limitation to subclause 18.1(c); namely, to limit ordinary hours to work to eight per day. Ms West explained that during the negotiations for the 2017 Agreement, this inclusion was made to better align the hours of work clause with the Award for the purpose of meeting BOOT requirements.93 Again, the additional sentence in subclause 18.1(c) creates no ambiguity or uncertainty but simply provides further indication of the authors’ intent to set parameters for the ‘ordinary hours of work’ such that they accord with the Award with a view to passing the BOOT. [106] The setting of these parameters logically leads to subclause (d) of clause 18.1. In subclause 18.1(d), the reader is informed of what is to occur should work be performed outside of ‘the spread of hours’. [107] Turning to that term, ‘the spread of hours’, there is no confusion as to that means. The sequence of the subclauses in clause 18.1 clearly indicates that ‘the spread of hours’ in clause 18.1(d) refers to the parameters of the ‘ordinary hours of work’ that have been set by the first three subclauses in the clause. Those first three subclauses of clause 18.1 ultimately lead the reader to what is effectively the trigger for overtime rates of pay in the Agreement. Absent the first three subclauses, the reader would be unaware of when that trigger was to occur. Subclause 18.1(d) is therefore dependent in its operation on the three preceding subclauses. There is nothing about the content of subclause 18.1(d) at this point, or its operation, that gives rise to ambiguity or uncertainty. 92 Cochrane April 2021 Statement [9] (Attachment 1). 93 West Statement [54], [55]. -- 22 of 28 -- 23 [108] Evidence was given that at a meeting on 5 November 2018, the Union and Applus agreed to change the wording of subclause 18.1(d) so that all work outside of 6.00am to 6.00pm would be paid at overtime rates, other than when clause 19 (Shift Work) applied.94 [109] Returning to subclause 18.1(d), it can be seen that it has more work to do. It informs the reader of the rates of pay attributable to work performed at certain times, stipulating that this work is paid in accordance with subclause 19.1(c). Unsurprisingly, in light of the evidence adduced and the plain meaning of the subclause 18.1(d), subclause 19.1(c) provides the rates of pay for all work done outside of ‘ordinary hours’ on any day or shift. Again, I do not consider that any ambiguity or uncertainty arises relating to the content or operation of subclause 18.1(d) at this point. [110] Subclause 18.1(d), however, provides the qualification that subclause 19.1(c) is not applicable where clause 18.2 applies. [111] Turning to clause 18.2, its first paragraph (s 18.2(a)) sheds light on the meaning of ‘rostered shift’, ‘afternoon shift’ and ‘night shift’. It is evident that the definitions of these terms are necessary inclusions to enable the reader to discern when particular rates of pay will operate. On this point, clause 18.2 then sets out: a) provision for rates of pay (ie. percentage loading, or time and one half or double time) when an afternoon shift or night shift is worked (subclauses 18.2(b), 18.2(c) and 18.2(d); b) the applicable rates of pay where a shift is worked on a Saturday, Sunday or public holiday (see subclause 18.2(e); and c) the applicable rate of pay where the shift is not a ‘rostered shift’ (see subclause 18.2(f)). [112] The clause does not end at subclause 18.2(f) as can be seen in Annexure One. However, further detail of its content is unnecessary to illustrate the point that the reference in subclause 18.1(d) to clause 18.2 does not give rise to ambiguity or uncertainty. [113] The Union submitted that subclause 18.2(e) and clause 18.3 of the Agreement could be read harmoniously with subclause 18.1(b) because neither clause suggested that ‘ordinary hours’ could fall on a Saturday or Sunday. The Union submitted that they simply provided for the types of payment that Applus was required to make if an employee worked on Saturday or Sunday (or a Public Holiday). I would agree with this point. [114] As observed, the mere existence of rival contentions as to the meaning or application of a provision or provisions in an enterprise agreement is not always sufficient to indicate ambiguity or uncertainty for the purposes of s 217. I have found that to be the case here in respect to whether clause 18.1 harbours ambiguities or uncertainties as to: 94 Cochrane April 2021 Statement [40]. -- 23 of 28 -- (a) whether clause 18.1, being ‘Subject to this Agreement’, applies to shift workers described in clause 18.2; and (b) whether the ‘ordinary hours of work’ as described in clause 18.1 merely delineate and define the rates of pay applicable to hours actually worked, or whether they dictate hours that must ordinarily be worked. [115] The task before me did not extend to answering the abovementioned questions as to whether clause 18.1 applies to shift workers described in clause 18.2 or whether the ‘ordinary hours of work’ as described in clause 18.1 merely delineates and defines the rates of pay applicable to hours actually worked. The task was to make a finding by objective means as to whether there was an ambiguity or uncertainty with clause 18.1 of the Agreement and related clauses. This necessitated an assessment of the matters relied upon for the competing contentions, including evidence on whether the authors of the Agreement had a common understanding as to the meaning of the terms used in their Agreement.95 When the evidence of the negotiations, the approach adopted by the parties until May 2020 and the text of the Agreement considered in context is undertaken, I consider they did. [116] The extent of the purported ambiguities and uncertainties do not conclude there. Applus argued that there was an ambiguity or uncertainty as to whether 36 hours or 40 hours must be worked in order to accrue 4 hours towards an RDO (rostered day off). Again, I find that no such ambiguity arises. [117] Subclause 18.5(a) makes provision for Rostered Days Off in the following terms: An ordinary working week consists of 36 ordinary paid hours and a maximum of 4 hours accrued toward a Rostered Day Off (RDO) at the ordinary hourly rate. [118] Subclause 18.5(b) clarifies that the RDO will accrue each day after 7.2 ordinary hours are worked. [119] The telling point is that subclause 18.5(b) refers to the hours being ‘worked’. Clause 18.1(c) caps the ordinary hours of work to eight ordinary hours a day. The impetus for the inclusion of the cap has been previously described, and I do not intend to repeat it. If then, an employee works eight ordinary hours in the day, after 7.2 ordinary hours are worked, the hour, or rather part thereof, worked beyond that point, will accrue toward the RDO. As ordinary hours are capped at eight ordinary hours, there is potential to accrue 48 minutes a day. If five days were worked and eight ordinary hours were worked on each day, the employee would accrue 4 hours toward the RDO. Clause 18.5(a) informs that a maximum of 4 hours can accrue toward a RDO in an ordinary working week. [120] There was said to be uncertainty as to whether clause 18.5 was intended to align with clause 18.1 and incorporate a concept of averaging or not. Concerning whether clause 18.5 was intended to ‘align’ with clause 18.1, for reasons already provided, I consider that the two clauses are ‘aligned’. However, this does not in turn mean that there is uncertainty as to whether clause 18.5 incorporates a concept of averaging or not. I find that there is not for the following reasons. 95 Bianco [70]. -- 24 of 28 -- 25 [121] To elaborate further, clause 18.1 sets the parameters for the ordinary hours of work (subclauses (a), (b) and (c)) and the payment to be attributed to work performed outside of such hours (subclause 18.1(d)). Clause 18.1 informs the reader of the days when the ordinary hours may be worked, how many ordinary hours may be worked in one day, that the ordinary hours are to be worked continuously except for meals breaks, and the span of the ordinary hours of work. [122] Subclauses 18.5(a) and 18.5(b) refer to ‘ordinary hours’, ‘ordinary paid hours’, ordinary hourly rate’ and ‘ordinary working week’. The concept of ‘ordinary hours of work’ clearly derives its meaning from subclauses 18.1(a), (b) and (c). However, subclause 18.5(a) refers to an ‘ordinary working week’ and what it consists of. No mention is made of an ‘average thirty-six (36) hours per week over a defined work cycle’. This is because the reader is already informed that an ‘ordinary working week’ consists of ‘36 ordinary paid hours’, not an ‘average’. 5 Conclusion [123] As noted in my introductory remarks, I am not satisfied that there are ambiguities or uncertainties in relation to the two matters identified by Applus, namely: a) the ordinary hours of work for shift workers; and b) whether 36 hours or 40 hours must be worked in order to accrue 4 hours towards an RDO (rostered day off). [124] I have therefore determined not to grant the application and vary the clauses as suggested by Applus. The application is therefore dismissed. An Order96 to this effect will be issued with this decision. DEPUTY PRESIDENT Appearances: Ms. Rachel Cosentino, Counsel, Francis Burt Chambers, for the Applicant; 96 PR731561. -- 25 of 28 -- Ms. Celeste de Saint Jorre, of Minter Ellison, for the Applicant; Mr. Cory Fogliani, of Fogliani Lawyers, for the Respondent; Ms Pearl Lim, of the AMWU, for the Respondent. Hearing details: Perth (video); 2021; May 10. Printed by authority of the Commonwealth Government Printer <PR731698> -- 26 of 28 -- 27 Annexure A 18.2 Shift Work (a) For the purpose of this clause: (i) rostered shift means any shift of which the employee concerned has had at least 48 hours' notice; (ii) afternoon shift means any shift finishing after 6.00pm and at or before midnight; and (iii) night shift means any shift finishing after midnight and at or before 8.00am. (b) An employee who works on afternoon or night shift will be paid 15% loadingon ordinary hours worked during such shift. (c) An employee who works on an afternoon or night shift which does not continue: (i) for at least five (5) successive afternoon or night shifts (where no more than eight ordinary hours are worked on each shift); or (ii) for at least 36 ordinary hours (where more than eight hours are worked on each shift) will be paid time and one half for the first three (3) hours and double time for the remaining hours worked in the shift. (d) An employee who: (i) during a period of engagement on shift, works night shift only; or (ii) remains on night shift for a longer period than four (4) consecutive weeks; or (iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give the employee at least one third of their working time off night shift in each shift cycle, will be paid 30% loading on ordinary hours worked during such night shift. (e) Where a shift is worked on a Saturday, Sunday or public holiday, either the provisions of clause 18.2 or 18.3 may apply - whichever is the more beneficial to the employee. The provisions of clauses 18.2 and 18.3 will not apply concurrently or cumulatively. (f) An Employee who does not receive at least 48 hours' notice of the requirement to work a rostered shift will be paid at double time until such time as the 48 hour notice period has been reached after which they will be paid in accordance with sub-clause (b), (c) or (d), as may apply in the circumstances. (g) The overtime rates prescribed in sub-clause (f) above are in substitution for and not cumulative upon the shift loading provided at sub-clause (b), (c) and (d) above. (h) Shift Change Day (i) Where an Employee is required to change from nightshift to a dayshift, they will be entitled to one (1) paid rest day, referred to as a shift change -- 27 of 28 -- day, after the completion of the last night shift as long as the following circumstances are met: a. The Employee is required to attend work dayshift on the day immediately following the shift change day; or b. The Employee would have otherwise been required to attend work on the shift change day, if not for having transitioned from nightshift to dayshift. (ii) For the avoidance of doubt, the following circumstances do not give rise to entitlement to a shift change day: a. Where an Employee has completed a rotation and is proceeding on a period of R&R following a nightshift. b. Where the shift change day is immediately followed by more than one (1) day of authorised leave or more than one (1) RDO. c. Where an Employee has been provided a day to rest in between completing their last nightshift and demobilisation, and travels home after midday the following day. d. Where an Employee transitions from dayshift to nightshift. e. Any period of less than a day which falls between a nightshift and a dayshift. f. Any period which falls between travel and a work shift, or two instances of travel. (iii) The Company may, on a case by case basis, agree to apply a shift change day to a situation that does not meet the requirements outlined at clause 18.2(h)(i) and which is not expresslyexcluded by clause 18.2(h)(ii). Such agreement will not create a precedent for future situations. (iv) An Employee entitled to and taking a shift change day will be paid for 7.2 hours at the ordinary hourly rate. Thursday - nightshift Friday- shift change day Saturday & Sunday- not required to work Monday - attend work on dayshift 2. Tuesday - travel home after finishing nightshift that morning Wednesday - shift change day -- 28 of 28 --