Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council [2019] QIRC 7

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council [2019] QIRC 007 PARTIES: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (Applicant) v Brisbane City Council (Respondent) CASE NO: D/2018/49 PROCEEDING: Notice of Industrial Dispute DELIVERED ON: 17 January 2019 HEARING DATES: 16 July 2018 7 September 2018 15 and 16 October 2018 23 November 2018 (Applicant's submissions) 19 December 2018 (Respondent's submissions) MEMBER: HEARD AT: Thompson IC Brisbane ORDER: The answer to the question for arbitration on whether Schedule 10, clause 3.8.1 of EBA 8 properly construed, means stand alone is payable to those bus operators who did in fact attend an EBA 9 information session between 1 May 2018 and 14 May 2018 is "NO". RECOMMENDATION: • That bus operators who attended EBA 9 information sessions between 1 May 2018 and 14 May 2018 be remunerated for those attendances, consistent with arrangements previously endorsed by the BCC in 2013; and -- 1 of 41 -- 2 • the BCC and ARTBU engage in good faith dialogue for the purposes of reaching an agreed outcome in respect of bus operators attendances at future EBA information sessions. CATCHWORDS: INDUSTRIAL LAW – NOTICE OF INDUSTRIAL DISPUTE - Question for arbitration - Fairness and equity - Custom and practice - Answer to question for arbitration "NO" - Recommendation made. LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 171, s 261, s 531 Acts Interpretation Act 1901 (Cth) Brisbane City Council Certified Agreement 2018 (EBA 9) Brisbane City Council Certified Agreement 2013 (EBA8) Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285 at [41] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53] Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) 245 IR 394 at [23] United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853 at [30] Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) 245 IR 394 at [23] Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 at [22] -- 2 of 41 -- 3 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] 64 ALR 481 Australian Iron & Steel Limited and the Federated Ironworkers' Association of Australia, New South Wales Division re Demolishers (1960) 59 AR 670 at 681 - 682 Halsbury's Laws of England, 3rd ed., Vol XI, p. 182 Furnace Demolishers Case (1960) AR 670 Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11 at [44] Glen Cameron Nominees Pty Ltd (t/a Glen Cameron Trucking) v Transport Workers' Union of Australia [2018] FWCFB 3744 at [43] DL Employment Pty Ltd v Australian Manufacturing Workers' Union [2014] FWCFB 7946 Toyota Motor Corp Australia Limited v Marmara [2014] FCAFC 84 at [90] BP Australia Pty Limited v Nyran Pty Limited [2003] FCA 520 at [33] APPEARANCES: Mr L. Kennedy of Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch, Notifier Ms A. Treston of City Legal for the Respondent. Reasons for Decision Background [1] A Notice of Industrial Dispute was filed by the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (ARTBU) on 1 June 2018 pursuant to s 261 of the Industrial Relations Act 2016 (the Act) notifying of a dispute with the Brisbane City Council (BCC). -- 3 of 41 -- 4 [2] The subject matter of the dispute was identified as: 1. The Respondent has failed to pay "stand alone time" for EBA information sessions held with employees covered under the Agreement. 2. Clause 3.8.1 of the Agreement describes Stand Alone Time as the following: "3.8.1 Stand Alone (i) Stand Alone will be worked for training, consultation and communication purposes. Stand Alone time is paid at ordinary rates. Stand Alone time will be for a minimum period of 15 minutes and will not extend for a period of more than two hours and will not be considered in the calculation of overtime and other payments." 3. After discussion with the RTBU the Respondent has continued to refuse to recognize their obligations to pay employees who attended these employer-ran EBA information sessions. [3] The relevant industrial instrument was the Brisbane City Council Certified Agreement 2013 (EBA 8) - CA/2013/68. [4] In terms of the dispute settling procedures they had been undertaken to resolve the dispute as follows: • Stage 1 - early May 2018; • Stage 2 - 15 May 2018; and • Stage 3 - 31 May 2018. [5] A conciliation conference was held in the Queensland Industrial Relations Commission (QIRC) on 19 June 2018 before Industrial Commissioner Black where the matter was referred to arbitration. [6] A draft document of Agreed Facts and Question for Arbitration was lodged with the Industrial Registry in 26 July 2018 in the following terms: Agreed Facts 1. The following facts are agreed between the parties: (a) Attendance by bus operators at EBA9 Information Sessions between 1 May 2018 and 14 May 2018 was voluntary; (b) The information provided by the Brisbane City Council at the EBA9 Information Sessions between 1 May 2018 and 14 May 2018 was provided for the purposes of section 171(2)(b) of the Industrial Relations Act 2016. -- 4 of 41 -- 5 (c) There was no data collected at the time of most of the EBA9 information sessions recording who was in attendance. Question for Arbitration 2. The question for arbitration is whether Schedule 10, clause 3.8.1 of the Brisbane City Council Certified Agreement 2013, properly construed, means stand alone time is payable to those bus operators who did in fact attend an EBA9 Information Session between 1 May 2018 and 14 May 2018. Witness Lists [7] The witnesses for the ARTBU were as follows: • David Matters (Matters)(Affidavit only); • Ricky Luke (Luke); • Wendy Hodgson (Hodgson); • Thomas Brown (Brown); and • Ben Jones (Jones). [8] The witnesses for the BCC were as follows: • Matthew Anderson (Anderson); • Alison Grendon (Grendon); • Luke Cruwys (Cruwys); • Ian Mackenzie (Mackenzie); • Brad Miers (Miers)(Affidavit only); • Karen McGraa (McGraa)(Affidavit only); • Brett Howe (Howe)(Affidavit only); • Sally-Ann Briggs (Briggs)(Affidavit only); • Gerard Cooper (Cooper)(Affidavit only); and • Glenn Berghofer (Berghofer)(Affidavit only). -- 5 of 41 -- 6 ARTBU Matters [9] Matters the former Assistant State Secretary of the ARTBU and former Secretary of the Bus and Tram Division gave evidence (in affidavit form) that the issue subject to the proceedings had never been raised in his 26 years spent dealing with the BCC. At various times throughout negotiations around enterprise bargaining agreements (EBA) the subject of payment for attendance at EBA sessions had been raised and in some negotiations not raised at all. The one constant throughout all the negotiations was that bus operators who chose to attend these sessions had always been paid. [10] At the time of providing his affidavit Matters held employment as a bus operator for the BCC operating out of the Eagle Farm depot. Luke [11] Luke a State Organiser with the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) was the lead organiser in negotiations for the BCCs EBA 9. At the conclusion of the negotiations there were emails exchanged regarding the location and times of EBA sessions as well as the balloting process. The time set for each session was that of one hour with attendance on a voluntary basis and for those who attended they were paid for their time. [12] At no point in the negotiations was he involved in any conversation with a BCC representative about being paid to attend these sessions. It had been expected they would be paid as it had "always been that way". [13] Luke provided an attachment to his affidavit which identified session locations and times: Brisbane CBD 30 April: 1.30 pm and 2.30 pm Level 13, 157 Ann Street 10 May: 9.30 am and 10.30 am Level 16, BSQ conference centre Carina bus depot 10 May: 10 am, 12 pm, 2 pm Darra depot, 38 Shamrock Road, Darra 8 May: 6.30 am, Training room Eagle Farm Asphalt, 228 Curtain Ave, Eagle Farm 1 May: 6.30 am 8 May: 7 pm Eagle Farm bus depot 1 May: 12 pm, 2 pm, 3 pm Garden City bus depot 9 May: 10.30 am, 1.30 pm, 3 pm Green Square, Level 2 conference centre 1 May: 2 pm, 3 pm 9 May: 10 am, 11 am -- 6 of 41 -- 7 North Regional Business Centre, 375 Hamilton Rd, Chermside 9 May: 2.30 pm, Library meeting room 3 (ground floor) Sherwood bus depot 14 May: 11 am, 1.30 pm, 3 pm South Regional Business Centre, 681 Fairfield Rd, Yeerongpilly 3 May: 10 am, Disaster Management room (ground floor) Stafford, 41 Lennon St, Stafford 3 May: 1.30 pm, meeting room 3 10 May: 9 am, meeting room 3 Toowong bus depot 2 May: 10 am, 11.30 am, 1.30 pm Virginia bus depot 4 May: 12.30 pm, 1.30 pm, 3 pm Willawong bus depot 3 May: 11 am, 12.30 pm, 3 pm [14] Under cross-examination it was Luke's evidence that his members were there on normal time and not a special allowance to attend the EBA sessions [Transcript p. 3-10]. Hodgson [15] Hodgson had been a bus operator with the BCC since 2003 with her initial employment covered by EBA 5. In the course of her employment there had been a further four EBAs negotiated for which she had attended EBA information sessions, those being: • EBA 6, 7, 8 and 9. She had been paid for her attendance at all sessions except EBA 9. [16] As a bus operator it was not possible to attend EBA sessions in work time and, with their pay arrangements being the only time for which they are paid is whilst driving a bus plus 10 mins either side of the shift to sign on/off, they had no opportunity to be informed on the EBA other than EBA sessions. There was information relating to EBA sessions that did not state that attendance was voluntary or allude to payment for attending the session and, for that reason, she had made an assumption that payment would be made as stand alone time as in the past. [17] Hodgson attended an EBA session at the Carina depot where she was required to sign an attendance sheet which indicated to her they were to be paid for their attendance. [18] Under cross-examination Hodgson confirmed in her 15-plus years at the BCC she had only worked at the Carina Depot and had always been paid to attend EBA sessions in the past [Transcript p. 3-21]. She accepted that she was relying upon her memory (which was very good) but she had not provided any material to support her claim [Transcript p. 3-21]. Hodgson did not concede there were copies of EBA 9 at the depot counter that she could have pursued stating that only occurred after the EBA was actually ratified. -- 7 of 41 -- 8 She had voted on the EBA without seeing a copy relying on her union's advice [Transcript p. 3-22]. The benefit of attending information sessions was to hear the "finer points" of the EBA [Transcript p. 3-23]. Hodgson accepted there were other ways, other than information sessions to find out about the EBA [Transcript p. 3-23]. In her own time, she had sourced information from the manager at the Carina depot (McGraa) [Transcript p. 3-24]. Hodgson conceded that her attendance at the information session had been voluntary however prior to EBA 9 there had always been a payment made [Transcript p. 3-24]. On her attendance at the EBA 9 information session she had signed a sheet which documented her payroll number and her bus run for that day [Transcript p. 3-25]. On the signing of the sheet in question, being for the purposes of being sent a copy of the EBA by email, Hodgson acknowledged "They could've said - yes, they would send it by email. But we also class that as a payment sheet as well" [Transcript p. 3-25]. At the time of giving her evidence she was yet to receive a copy of the EBA in a BCC email [Transcript p. 3-25]. Brown [19] Brown, the Assistant Secretary of the ARTBU (Queensland Branch) and the Secretary of the Bus Division of the same, was the lead negotiator for the Union in respect of EBA 9 which took around 20 months and "ultimately concluded in a half-hearted kind of way". [20] Whilst the ARTBU was in agreement with the provisions of the proposed EBA, the other unions were not which meant that his union had to wait for various applications to be resolved in the QIRC before the agreement could be balloted. The end of the negotiations were a "bit disjointed" as a result of no official final day of negotiations. In his current role he participated in the EBA process for the first time and had gained an understanding from Matters that it was customary for the BCC to pay members for their attendance at the EBA sessions. On the basis of this understanding he had not concerned himself with approaching the BCC to check on such payment. [21] He had been a bus operator with the BCC at the Virginia depot for 17 years during which time he attended approximately four EBA sessions, all of which were paid for and he believed the same would apply on this occasion. Note: The witness attached a number of petitions (TB2) to his affidavit said to have been signed by bus operators who had previously been paid for their attendance at EBA information sessions. The BCC opposed their admission in the proceedings however whilst their objections were overruled the level of weight to be given to such evidence would be very limited at best, due to the inability of the BCC to be able to challenge such evidence. -- 8 of 41 -- 9 Jones [22] Jones the lead organiser with the Queensland Services, Industrial Union of Employees (QSU) was involved with the "on-the-ground" organising of EBA 9 where his union had members located in a number of places including BCC bus depots. QSU members at the bus depots held the roles of supervisor, team leaders and counter staff and were at the conclusion of EBA negotiations entitled to attend information sessions on a voluntary basis during work time. Those who attended were paid for their time and at no point of time during the negotiations did the parties engage in a conversation about payments to attend the sessions because it was "just expected that they would because it has always been that way". [23] Under cross-examination Jones detailed the areas of coverage both within the BCC and more particularly the bus depots [Transcript p. 4-8]. The QSU members who attended the information sessions attended in their work time, paid their ordinary rate and were not in receipt of any special allowance [Transcript p. 4-8]. BCC Anderson [24] Anderson, the Branch Manager - Operations at Transport Brisbane, attended eight EBA 9 information sessions from 1 May 2018 to 14 May 2018 at the following bus depots: • Eagle Farm; • Toowong; • Willawong; • Garden City; and • Sherwood. [25] There were no attendance sheets kept for any of the EBA information sessions he attended nor were bus operators directed to attend such sessions. He was aware that at two sessions held at the Willawong depot employees had been incorrectly informed they would be paid stand alone time for their attendance at the sessions. He took steps to correct the situation, at the same time he agreed to pay stand alone time for the employees who had been given the incorrect information. To the best of his knowledge the ARTBU had not raised the matter of stand alone time for bus operators at any information session in 2017 nor had any bus operator claimed payment or was paid for attending these sessions. -- 9 of 41 -- 10 [26] Bus operators had access to information regarding EBA 9 negotiations from a number of sources including: • EBA 9 news email update; • EBA 9 employee information sessions; • Divisional Manager's notice board; • messages from Divisional Manager; • team meetings; • posters; • Monthly Report News; and • Brightsign Screens located in depots, garages and workshops. Hard copies regarding EBA updates were left in prominent areas such as on noticeboards and in lunchrooms in the workplace. [27] Attachment "MA1" to his affidavit was an EBA 9 "sign-on" sheet (dated 3 May 2018) upon which someone had written "please pay 1 hour stand alone time". [28] Under cross-examination he indicated he was not aware of any attendance records (discounting Willawong) being kept for the meetings [Transcript p. 3-17]. With regards to emails sent out to bus operators in relation to EBA information, he acknowledged that there were a "large number of bus operators across our organisation that had email addresses that were either inactive or not regularly used, but a large number of them who did use those emails" [Transcript p. 3-17]. Grendon [29] Grendon's substantive position was that of Principal Workplace Relations Consultant although from 9 July 2018 she had been the acting Workplace Relations Manager at the BCC. She attended the majority of the EBA meetings held from 26 October 2016 to 1 August 2017. In the course of negotiations there were in the vicinity of 80 separate employee EBA 9 communications in the period 17 October 2016 to 25 May 2018. The matter of payment for attendance at EBA 9 information sessions had not been raised by any union prior to the sessions held for the 30 April 2018 to 14 May 2018 period. -- 10 of 41 -- 11 [30] Grendon attended 19 EBA information sessions between 30 April 2018 and 14 May 2018 that were held at the following bus depots: • Eagle Farm; • Toowong; • Willawong; • Virginia; • Garden City; • Carina; and • Sherwood. Not all sessions proceeded due to there being no employees in attendance. No bus operators were directed to attend any of the EBA 9 information sessions nor was there attendance sheets, recording the names of attendees kept at any of the information sessions she attended. [31] Grendon had the BCC file regarding the EBA 6, Schedule 10, negotiations and based on the material viewed she had concluded that stand alone time was introduced into an industrial instrument for the first time in 2005 in EBA 6 and was designed to be a payment method for bus operators attending training. There had been no material change to the stand alone clause between EBA 6 (certified in 2005) and EBA 9 (certified in 2018). [32] In the EBA 9 negotiations the ARTBU raised issues in relation to training, specifically that it should occur in rostered time only rather than be paid as stand alone time. There was no discussion held between the parties regarding any other activity undertaken by bus operators that should constitute stand alone time payment. [33] The BCC file notes regarding the "Brisbane City Council Bus Transport Employees Award - EBA 6 Passenger Services Schedule 10" were attached to the witness's affidavit. Cruwys [34] Cruwys' substantive employment was as the BCC Workplace Relations Manager and he was in the role during the EBA 9 negotiations, attending all meetings held between 26 October 2016 and 1 August 2017. During the negotiations there were about 80 EBA 9 updates over the period 17 October 2016 to 25 May 2018. -- 11 of 41 -- 12 [35] Cruwys wrote to all union negotiating parties on 25 October 2016 confirming arrangements for the first round of information sessions for EBA 9. In respect of the ARTBU the correspondence stated: For the RTBU, Council offers to have one paid delegate sit in a room at their usual depot for employees to visit in unpaid time before shift, after shift or during breaks. Council will confirm the dates this can occur soon. The arrangement was agreed by the ARTBU and bus operators were not paid to attend these meetings. [36] In the same correspondence of 25 October 2016 Cruwys stated: Paid union meetings Council will facilitate a one-hour meeting (30 min paid union meetings and 30 min with Council) for employees to choose to attend. These meetings will be held between today and 8 November (Council will confirm these dates soon) in order for the Unions to finalise their log of claims. The meetings will take place in the following locations: • Stafford • Darra • North Regional Business Centre • South Regional Business Centre • Brisbane Square • Green Square • Eagle Farm • Wacol Employees can only attend one paid meeting. [37] The matter of payment for attendance at EBA 9 meetings was not raised by any union during negotiations. No attendance sheets recording names of any employees were completed at any of the EBA 9 information sessions attended by Cruwys. [38] The ARTBU did not raise the matter of payment for stand alone time for bus operators at any of the EBA 9 information sessions in 2017. [39] Under cross-examination it was Cruwys' evidence that he did not attend information sessions for EBA 9 at any bus depot [Transcript p. 3-33]. He had no knowledge whether there were attendance sheets signed by bus operators at information sessions [Transcript p. 3-33]. Mackenzie [40] Mackenzie was the Manager at the Willawong bus depot having held that position for nine years and, prior to that, the Manager of the Toowong bus depot for four years. In -- 12 of 41 -- 13 respect of EBA 9 information sessions at Willawong bus depot on 3 May 2018 at 11.00 am, 12.30 pm and 3.00 pm the bus operators were informed of the sessions by notices affixed to noticeboards. [41] Prior to the first meeting he sought advice as to whether bus operators would be paid for their attendance and was informed that was the case which resulted in him circulating an attendance sheet at the first and second meeting to record attendance for that purpose. According to the attendance sheet there were six bus operators in attendance at the first session with five of them paid "stand alone time" of one hour. The bus operators receiving payment had attended in non-work time with the other operator on light duties at the time. [42] The attendance sheet for the second session showed 11 bus operators attended with ten of them paid "stand alone time" as they attended in non-work time. Again there was a bus operator on light duties who attended in his own time and was paid for his attendance. [43] Prior to the third session he had discussions with the Operations Manager (Anderson) who told him that bus operators would not be paid stand alone time to attend the EBA 9 session. Bus operators were informed by Mackenzie that they would not be paid for their attendance at the third session. [44] If bus operators were unable or unwilling to attend EBA 9 information sessions they were able to obtain information about the process from notices placed on noticeboards or speaking to their team leaders or himself. He was Depot Manager when information sessions were conducted with respect to earlier EBAs but he had no recall with any certainty whether bus operators were paid to attend those meetings. [45] Stand alone time is paid to bus operators required to attend meetings such as performance management. [46] Under cross-examination he reiterated his previous evidence about not recalling whether employees were paid for their attendance at information sessions but he "believed that was the case" but he was not 100 per cent certain enough to swear under oath [Transcript p. 3-36]. Miers [47] Miers, the Garden City bus depot manager since 2013, gave evidence of information sessions being held at his depot on 9 May 2018 at 10.30 am, 1.30 pm and 3.00 pm for EBA 9. He was on leave at that time and did not personally attend the sessions. He gave evidence of being informed by the depot operations team leader that bus operators were informed prior to the sessions that attendance was voluntary and they would not be paid for their attendance. No attendance sheets were kept so he had no knowledge of how many bus operators attended the sessions. -- 13 of 41 -- 14 [48] He was unable to recall if bus operators had been paid to attend information sessions in relation to previous EBA information sessions. Payment of stand alone time had been limited to training since management of Transport Brisbane had been assumed by Geoff Beck and Anderson. McGraa [49] McGraa, the Manager of the Carina bus depot since 2013, gave evidence of information sessions for EBA 9 being held on 10 May 2018 at 10.00 am, 12.00 pm and 2.00 pm. Bus operators were informed about the sessions by posters placed around the depot and there were other options also available in the depot where the same information could be obtained. [50] Over the three sessions there were 11 bus operators in attendance at the meeting who all attended in their own time. The bus operators had been advised that attendance was voluntary and would be unpaid. McGraa was unable to recall if bus operators were paid to attend information sessions held in connection with previous EBAs. [51] There were a range of circumstances where stand alone allowance is paid to a bus operator that includes: • being required to see a Team Leader for performance or other issues; • required to attend a meeting or consultative forum; and • required to attend team meetings. Howe [52] Howe who had been the Manager of the Virginia bus depot since November 2016, gave evidence of information sessions for EBA 9 being held at the depot on 4 May at 12.30 pm; 1.30 pm and 3.00 pm. Employees were informed by notices and visual displays around the depot of the sessions of which there were (in his estimation) approximately 20 bus operators in attendance at the first session with seven or eight at the second session and one at the final session. The bus operators attended in non-work time and were informed that the session attendances would be unpaid. [53] Copies of EBA 9 were available at the depot counter for the information of all employees as well as other material that had been provided by Workplace Relations. Stand alone time was paid at the Virginia depot for consultative meetings and performance reviews that bus operators were required to attend. There were occasions where employees were required to discuss complicated payroll enquiries for which stand alone time was paid. -- 14 of 41 -- 15 Briggs [54] Briggs the manager of the Eagle Farm bus depot since October 2013 gave evidence of EBA 9 information sessions being held on 1 May 2018 at 12.00 pm, 2.00 pm and 3.00 pm with employees informed by notices placed around the depot. There were other methods utilised by the BCC to advertise the meetings. The bus operators who attended the meeting did so in their own time and were not paid. [55] In respect of EBA 8, the session times held brought payment for bus operators under stand alone time which was confirmed by correspondence (dated 20 August 2013) that stated: It seems the RTBU decided to run their own EBA session at Toowong this morning in competition to at least one of the Management sessions. Maybe this is a Toowong thing as it seems that Mr Matters and Mr Buttonshaw had an open disagreement in the lunch room. It was also reported that the union representatives at Toowong were not overly support of the agreement. It was the expectation of Council that the major unions will talk up a Yes Vote for the agreement. Council is keen to ensure that only employees who attend the management sessions are paid stand alone time. So without telling you to such eggs came you ensure that we have a sign in arrangement for those attending to be a basis of payment of the stand-alone time. Also any feedback on the attitude of unions representatives would be appreciated. Stand alone time is paid at the Eagle Farm depot for required meetings and team leader forums that are related to genuine operational issues. Cooper [56] Cooper who had been the Manager at the Sherwood bus depot since 23 April 2018, gave evidence of EBA 9 information sessions being held at the depot on 14 May 2018 at 11.00 am, 1.30 pm and 3.00 pm. Employees were informed of the sessions by notices placed in prominent places around the depot and, to his knowledge, only two or three bus operators attended the first two sessions. Prior to the commencement of the sessions counter staff broadcast a message over the public address system reminding employees that the sessions were about to commence and stand alone allowance would not be paid. About six copies of EBA 9 were made available for the perusal of depot staff. No one attended the third session. Berghofer [57] Berghofer the Manager of the Toowong depot since September 2017, had previously managed the Carina depot (four years) and Willawong depot (three months). There were -- 15 of 41 -- 16 EBA 9 information sessions held at the Toowong depot on 2 May 2018 at 10.00 am, 11.30 am and 1.30 pm. Bus operators had been informed they would not be paid for their attendance at the sessions. Some bus operators attended the first session only with the other sessions attended by garage and workshop employees. Berghofer was unable to recall if bus operators were paid for attendance at information sessions for earlier EBAs. Submissions ARTBU [58] The dispute between the parties pertained to the payment of stand alone time for the attendance of workers at EBA sessions held at the BCC between 1 May 2018 and 14 May 2018 for the purposes of discussing the final content of EBA 9 with the workforce. The sessions were "voluntary" with invitations issued to bus operators, other staff and scheduled to run for about one hour. [59] It had been a matter of custom and practice that the BCC had paid stand alone time for attendance at these sessions previously over a period spanning 26 years in which time there had never been an occasion where bus operators had not been paid to attend EBA information sessions. The process was so fundamental to the EBA process that none of the parties to the negotiations bothered to discuss it. The officials from the AMEPKU and QSU gave evidence that members of those unions were paid for their attendance at EBA 9 sessions. Neither of these unions had "firmed up" arrangements about the payment yet they were paid for their attendance. Interpretation of clause 3.8.1 of the Agreement [60] EBA 8 at Schedule 10, clause 3.8.1 describes stand alone time as: 3.8.1 Stand Alone (i) Stand Alone will be worked for training, consultation and communication purposes. Stand Alone time is paid at ordinary rates. Stand Alone time will be for a minimum period of 15 minutes and will not extend for a period of more than two hours and will not be considered in the calculation of overtime and other payments… [61] The EBA should be construed in accordance with the recent interpretation summarised in the matter of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd1 which built on the well settled authority in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union2 that stated: 1 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285 at [41] 2 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53] -- 16 of 41 -- 17 The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU, Gleeson CJ and McHugh J described the process in the following terms: '[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...'. Or, as Kirby J put it in the same case, '[i]nterpretation is always a text-based activity'. [62] The common intention of the parties is to be identified objectively by reference to a reasonable person's understanding of the language employed in the agreement. [63] Further in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union3 it was stated: Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '… the entire document of which it is a part or to other documents with which there is an association'. It may also include '… ideas that gave rise to an expression in a document from which it has been taken' – Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J). [64] Pedantic approaches to interpretation, or interpretations divorced from industrial realities are to be avoided. The construction of an agreement should contribute to a "sensible industrial outcome such as should be attributed to the parties who negotiated and executed the agreement". Other authorities relied upon included: • Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd4; and • United Firefighters' Union of Australia v Country Fire Authority5. Proper construction of clause 3.8.1 of the EBA [65] The proper construction of clause 3.8.1 of the EBA is as follows: • the Respondent is required to make payment to employees in situations where an employee attends sessions outside of normal duties where the Respondent wishes to provide training, consultation, or "communication"; and • the plain and ordinary meaning of the term "communication" is given by the Oxford Dictionary 3 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53] 4 Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) 245 IR 394 at [23] 5 United Firefighters' Union of Australia v Country Fire Authority [2007] FCA 853 at [30] -- 17 of 41 -- 18 [66] The plain and ordinary meaning of the term "communication" in the Oxford Dictionary is that of "…Act of imparting; information given…". [67] The BCC was said to be lawfully required to discharge their obligation under s 171 of the Act: The employer must take reasonable steps to ensure - (a) each relevant employee has, or has ready access to, the proposed bargaining instrument or a copy of the proposed instrument at least 14 days before the day the relevant employees are asked to approve the proposed instrument; and (b) the terms of the proposed instrument, including the procedures for preventing and settling disputes, and the effect of the terms are explained to each relevant employee before approval is given… [68] The employer is required to explain to each relevant employee the terms of the proposed instrument and the effect of those terms through the holding of the EBA information sessions which is what occurred at the BCC sponsored sessions. The methods utilised by the BCC were supported by the ARTBU. Had the respondent complied with clause 3.8.1 of the EBA and s 171 of the Act [69] Bus operators were relevant employees for the purposes of s 171 of the Act. It was reasonable for the BCC to hold the EBA information sessions to discharge their options under s 171 of the Act. The holding of these sessions were consistent with the plain and ordinary meaning of "communication", therefore clause 3.8.1 of the EBA was enlivened when bus operators attended the EBA sessions. [70] The refusal of the BCC to make payment to the bus operators for their attendance at the communication sessions was consistent with a breach of clause 3.8.1 of the EBA. Evidence of Grendon and the question of ambiguity [71] It was asserted that paragraphs 10, 11, 12 and 13 of Grendon's statement be removed from any considerations in the proceedings due to the intrinsic nature of the evidence. The Commission, it was acknowledged had pursuant to s 531(2) of the Act the option to inform itself in a way it considers appropriate in the exercise of its power and was not bound by the rules of evidence however such power should not be exercised in this instance. In the matter of Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd6 a Full Bench of the Fair Work Commission affirmed the decision in Codelfa Construction Pty Ltd v State Rail Authority of NSW7 (Codelfa) that: 6 Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) 245 IR 394 at [23] 7 Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 at [22] -- 18 of 41 -- 19 The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. [Emphasis added] There was no ambiguity in clause 3.8.1 of the EBA. [72] The sole evidence in the proceedings regarding the inserting of the clause in question was from Matters who had been party to 12 consecutive EBA negotiations with the BCC and he attested in his affidavit that "the one constant is that the Bus Operators have always been paid to attend when they chose to attend them" [the EBA information sessions]. No evidence was provided that would upset this fact. [73] The admission of the objectionable paragraphs in Grendon's affidavit would pose a clear separation from the requirement of both parties to have knowledge of this as outlined in Codelfa. Custom and Practice at Law [74] It is important to look to the custom and practice surrounding the payment of stand alone time at the EBA sessions and its relationship to clause 3.8.1 of the EBA. The High Court of Australia in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd8 set down the following principles as to the implication of a term based on a trade or industry custom: • The existence of a custom or usage that will justify the implication of a term into a contract is a question of fact • There must be evidence that the custom relied on is so well known and acquiesced in that everyone making a contract can reasonably be presumed to have imported that term into the contract. However, it is not necessary that the custom be universally accepted, for such a requirement would always be defeated by the denial of one litigant • A term will not be implied into a contract on the basis of custom where it contrary to the express terms of the agreement • A person may be bound by a custom notwithstanding the fact that he had no knowledge of it. [75] Further in the matter of Australian Iron & Steel Limited and the Federated Ironworkers' Association of Australia, New South Wales Division re Demolishers9 there was a citation 8 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] 64 ALR 481 9 Australian Iron & Steel Limited and the Federated Ironworkers' Association of Australia, New South Wales Division re Demolishers (1960) 59 AR 670 at 681 - 682 -- 19 of 41 -- 20 raised concerning Halsbury's Laws of England10 writings on the Furnace Demolishers Case11 which established that the existence of custom and practice can be established by the following principle: Every usage, whether in respect of a particular trade, branch of business or occupation, and whether affecting land or no, must be notorious, certain and reasonable, and it must not offend against the intention of any legislative enactment. Every usage must have acquired a such a notoriety in the particular market or branch of trade or in the department of business or amongst the class of persons who are affected by it (affected by the custom and practice), and that any person in that branch or department or class who enters into a contract of a nature affected by the usage must be taken to have done so with the intention that the usage should form part of the contract. Every usage must be certain. It must be uniform as well as reasonable, and in order to be incorporated as a term in a written contract it must have as much certainty as the written contract itself. [76] The evidence provided to the Commission by witnesses for the ARTBU demonstrated that there exists an ongoing custom and practice for employees of the BCC who voluntarily attend EBA information sessions, to be paid for their attendance. The evidence paints a clear picture that there exists an established implied obligation on the BCC to make payments to bus operators who attended the EBA sessions voluntarily. The payment is so notorious uniform and certain that officials of other unions party to negotiations did not make explicit requests to the BCC to confirm payments to their members for attendance as EBA sessions. Arising from the payment to other BCC employees (non-bus operators) for their attendance at the EBA sessions, it is reasonable to expect that the payment be made to the bus operators. Brown's Affidavit - Attached Petitions [77] The BCC in proceedings objected to the inclusion of petitions attached to Brown's affidavit which indicated that bus operators had been paid for attendance at EBA sessions in the past. There were testimonies from Matters, Brown and Hodgson to this effect as well as similar evidence from Briggs for the BCC. [78] The purpose of the petitions was to demonstrate that principles of custom and practice there were a notorious and reasonably held belief amongst bus operators that stand alone payments had been made in the past for their attendances. There is no attempt to assert these petitions are fact but rather quantifiable subject support of Brown's propositions and should be admissible and were not hearsay. [79] There was a subtle legal distinction that requires analysis of what the evidence was said to support. In this instance it is not to support a fact that these bus operators were paid but rather the fact they believed that they were paid. 10 Halsbury's Laws of England, 3rd ed., Vol XI, p. 182 11 Furnace Demolishers Case (1960) AR 670 -- 20 of 41 -- 21 Payment of Willawong Bus Operators [80] In the affidavit of Mackenzie he confirmed it was his understanding that bus operators would be paid "stand alone time" for their attendance at the EBA sessions at that depot. Whilst the bus operators who attended the third EBA sessions were not paid for their attendance there was payment made to those who attended the first two sessions. Mackenzie due to his longevity in the role of depot manager was comparably more aware of the requirements to make a payment of stand alone time for EBA sessions than other depot managers. Conclusion [81] The ARTBU evidence demonstrated that there indeed existed a custom and practice to pay employees of the BCC who attended EBA sessions in the past and for non-bus operators this custom and practice had continued into the most recent enterprise bargaining period. The evidence presented by the ARTBU had demonstrated a sufficient level of credibility so as to meet the required principles governing custom and practice in employment arrangements. The payments had been made for 26 years without issue. [82] The custom and practice of making such payment was so notorious, reasonable and certain as to having been cemented into the agreement by way of the stand alone clause. BCC Background [83] In terms of the relevant background the following occurred: • 2 July 2018 - EBA 9 certified by the QIRC; • 1 May 2018 and 14 May 2018 the BCC complied with its obligation under s 171 of the Act in taking reasonable steps to ensure that the terms of the proposed agreement were explained to relevant employees prior to approval; • between 1 May 2018 and 14 May 2018, the BCC conducted EBA information sessions in various workplaces which included the following bus depots: - Eagle Farm; - Toowong; - Willawong; - Virginia; - Garden City; - Carina; and - Sherwood; -- 21 of 41 -- 22 • ARTBU filed a notice of dispute on 1 June 2018 alleging that BCC had failed to pay "stand alone time" to bus operators who attended the EBA information sessions; and • a Conciliation Conference held on 19 June 2018 failed to resolve the dispute. Question for arbitration [84] The question for arbitration is whether schedule 10, clause 3.8.1 of the BCC Certified Agreement 2013, properly construed, means stand alone time in payable to the bus operators who attended the EBA information sessions between 1 May 2018 and 14 May 2018. Agreed Facts [85] The agreed facts were as follows: • attendance by bus operators at EBA information sessions was voluntary; • information provided by BCC at the sessions was for the purposes of s 171(2)(h) of the Act; and • there was no data collected at the time of the sessions recording who was in attendance. BCC case outline [86] The BCC contends that the relevant Schedule of EBA 8 properly construed means that any bus operator who voluntarily attended the EBA 9 sessions between 1 May 2018 and 14 May 2018 was not entitled to the payment of stand alone time pursuant to the relevant clause. The attendance by bus operators at the sessions was voluntary, in their own time and properly construed such attendances were not mandatory attendances at an event contemplated by the relevant clause. [87] It was an undeniable fact that bus operators apart from the ten minutes they take to sign on and sign off are only rostered to work when they drive buses. Relevant provisions of EBA 8 [88] Schedule 10 of EBA 8 deals with passenger services employees and provides amongst other things: -- 22 of 41 -- 23 Schedule 10: Passenger Services Employees To ensure continuing viability of Brisbane Transport operations and capacity to meet the commitments of this Certified Agreement, the following arrangements have been agreed between Brisbane Transport management and the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (RTBU). 1. Application This schedule applies to all Brisbane Transport Passenger Services Employees (i.e. bus operators, bus assistants and conductors), regardless of employment status. … 3. Other conditions … 3.2 Agreed interpretation of Award It is agreed that the current practices for interpretation of the Award are correct and these will continue to be used to calculate payments to Passenger Services Employees. … 3.8 Training time 3.8.1 Stand Alone (i) Stand Alone will be worked for training, consultation and communication purposes. Stand Alone time is paid at ordinary rates. Stand Alone time will be for a minimum period of 15 minutes and will not extend for a period of more than two hours and will not be considered in the calculation of overtime and other payments. (ii) An opportunity will be given for employees to complete tasks in Stand Alone time at a time convenient to the employee. If no convenient time can be arranged the time will be scheduled by Brisbane Transport and paid at Stand Alone rates. (iii) Operational arrangements for the completion of tasks in Stand Alone time will be confirmed through local consultation between the parties at the effected work location prior to the commencement of the arrangements. (iv) It is recognised that any activities undertaken in Stand Alone time will not compromise any obligations to ensure that minimum rest periods are taken. Principle regarding the construction of enterprise agreements [89] In a decision of the Fair Work Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd12 a Full Bench reviewed the principles relevant to the task of construing a single enterprise agreement stating: The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed 12 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285 at [114] -- 23 of 41 -- 24 construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision’s place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates. [90] The Full Bench went on to detail a range of other considerations that included: • interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair and just outcome; • the common intention of the parties is sought to be identified objectively; • enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies; • regard for evidence of surrounding circumstances; • if agreement has a plain meaning then evidence of surrounding circumstances will not be admitted to contradict the plain language of the agreement; • evidence of surrounding circumstances is limited to evidence trending to establish objective background facts; • evidence of objective background facts will include: - evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; - notorious facts of which knowledge is presumed; and - evidence of matters in common contemplation and constituting a common assumption; • admissible extrinsic material may be used to aid the interpretation of a provisions in an enterprise agreement with a disputed meaning but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties intention or purpose was; and • in the industrial context it had been accepted that in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial agreement however such post-agreement conduct must be such to show there had been a meeting of the minds. Post agreement conduct which amounts to little more than the absence of a complaint is insufficient to establish common understanding. -- 24 of 41 -- 25 Custom and Practice [91] In respect of the use of any alleged custom and practice in the construction of an industrial agreement, it was submitted that the principles of construction of an agreement in this regard are not in dispute. In the matter of Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd13, Gray J in dealing with custom and practice stated: For present purposes, I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken, however, to distinguish a common understanding from common inadvertence. If the only reason why the government instrumentality rates were not paid at the Victorian Arts Centre was that neither the union nor the employer adverted to the possibility that there was an obligation to pay them, no common understanding results. In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no-one has thought about the issue. [92] In Glen Cameron Nominees Pty Ltd (t/a Glen Cameron Trucking) v Transport Workers' Union of Australia14 a Full Bench relevantly stated: The principle of "common understanding" stated by Tracey J in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 (Linfox) at [36] was as follows: "A further aid to construction was referred to in submissions. It related to the possibility that the parties had, historically, adopted a common understanding as to the meaning and effect of disputed provisions in the relevant instruments". [93] Having regard to the principles of construction of a single agreement there can be no claim that a voluntary attendance by a bus operator at a time when they were not rostered on to work at the EBA 9 sessions is an attendance contemplated by the relevant clause to be stand alone time. Proper construction of Schedule 10, clause 3.8.1 of EBA 8 having regard to its context and purpose [94] Clearly the context and purpose of the clause is to compensate employees who are "required" by the BCC to attend for training. The clause contemplates payment by the BCC to employees for a compulsory or directed attendance at work for training consultation and communication purposes. The relevant clause is located under "Training Time" and states: 13 Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11 at [44] 14 Glen Cameron Nominees Pty Ltd (t/a Glen Cameron Trucking) v Transport Workers' Union of Australia [2018] FWCFB 3744 at [43] -- 25 of 41 -- 26 Stand Alone time will be for a minimum period of 15 minutes and will not extend for a period of more than two hours and will not be considered in the calculation of overtime and other payments… This provides an opportunity for employees to "complete tasks" in stand alone time at a time convenient to the employee. The relevant clause also refers to operational arrangements for "the completion of tasks in Stand Alone time" that will be confirmed through local consultation between the parties at the affected work location prior to the commencement of the arrangements and deals with circumstances where training is to extend beyond two hours such training will be rostered, refers to attendance at training. [95] The common intention of the parties objectively identified by the language used by the parties in the relevant clause is that: • stand alone time is to be paid for the purposes of training, consultation and communication with employees to whom the clause applies; and • such training, consultation and communication of employees is training, consultation and communication that is not voluntary but is required by the BCC or in other words is compulsory. [96] The evidence before the Commission identified that bus operators who attended EBA 9 sessions had done so voluntarily and in non-work time and such attendance was not compulsory or required by the BCC. Leaving aside whether the information provided in the sessions fell within the meaning of training, consultation and communication there was no obligation or requirement on the part of the BCC to pay stand alone time to those bus operators who attended the sessions. Clear meaning of "training, consultation and communication" in Schedule 10, clause 3.8.1 of EBA 8 [97] The BCC submitted that having regard for the relevant clause as a whole, the reference to "consultation and communication" purposes is for consultation or communication purposes in respect of training which was consistent with the clause heading "Training Time". Having regard for the heading the parties agreed that stand alone time would be paid for compulsory attendance for training purposes and in the case of bus operators it was relevant to training in respect of their jobs. If it was the intention of the parties that the consultation and communication referred to in the clause was for other purposes such an attendance at enterprise bargaining information sessions then it would have been referred to in the heading of the clause. As a consequence, "Training Time" as a heading means that the reference to consultation and communication relates to job training. That position is strengthened by clause 3.8.2(i) which provides: -- 26 of 41 -- 27 Attendance at training that is to extend beyond two hours will be rostered. Training that is not covered by Stand Alone time will be paid on the basis of normal rostered work or actual time worked whichever is the greater. Is the meaning of "training, consultation and communications purposes" in Schedule 10, clause 3.8.1 of EBA 8 ambiguous? [98] The BCC denied that the meaning of "training, consultation and communication purposes" was ambiguous or susceptible to more than one meaning however if the Commission was not of that view then evidence of surrounding circumstances of the agreement should be admissible to aid with the interpretation of the agreement subject to the following: • the admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement, and • evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. [99] On the basis there was evidence before the Commission of negotiations in 2005 that led to stand alone time being introduced in EBA 6 for the purposes of compensating employees who were provided training then the attachment at "AG2" of Glendon's affidavit would be of benefit regarding the inclusion of an equivalent version in EBA 6. [100] There was no evidence before the Commission surrounding the circumstances known to all the parties at the time stand alone provisions were introduced, in that it was for employees to voluntarily attend in non-work time information sessions about a proposed enterprise agreement. Indeed the evidence is the other way in that it was introduced of the purposes of providing payment to employees for the purposes of training. Custom and Practice as an aide to construction [101] The Commission must tread carefully in relying upon suggestions of custom and practice to pay employees to voluntarily attend in non-work time, enterprise bargaining information session by way of stand alone time as the evidence is that there had been no consistent custom and practice at bus depots of employees being required to undertaken tasks in those circumstances. There was no meeting of the minds of the parties to the agreement that such conduct was engaged in by them because of a common understanding about the interpretation of a certified agreement. The evidence before the Commission indicates that: -- 27 of 41 -- 28 • there has been no consistent practice adopted by the relevant depots of the Respondent that bus operators, who attend information sessions voluntarily in a non-rostered work time, were paid in accordance with the stand-alone provision; and • even if they have been, it has not been due to a meeting of the minds between the parties that such employees should be paid for such time and is due to common inadvertence. If such payment had been made then it had been made due to inadvertence as opposed to a clear agreement between BCC and the ARTBU. [102] The submission addressed the evidence of witnesses for the ARTBU in respect of custom and practice: • Hodgson - despite giving evidence of attendance at past EBA information meetings there was no evidence that any payment she had received had been paid as "stand alone time"; • Jones - gave evidence of his members at bus depots being paid for their attendance at information sessions because they attended "during work time"; • Matters - gave evidence that at various times throughout negotiations the subject of payment had been raised and in other negotiations not raised at all. One constant was that bus operators had always been paid for their attendance at these sessions on the basis of "sometimes we asked for it, sometimes we didn't, it just happened"; • Brown - his evidence was said to be vague in the extreme and his understanding of customary payment had been gained from Matters. In the course of EBA 9 negotiations he had not sought to gain the BCC approval for payment at the sessions; and • Luke - his members had been paid for attending EBA sessions in work time not on the basis of any meeting of the minds or agreement but because "it was just expected they would because it always had been that way". They were not paid under the stand alone time provision. [103] The evidence of the BCC witnesses indicated there was no meeting of the minds between the ARTBU and the BCC that the voluntary attendance by bus operators in their own time at the EBA sessions since 2005 was to be paid for by way of stand alone time: • Cruwys - no claim had been made for meetings scheduled to take place in October 2017 for attendance by bus operators who were to voluntarily attend EBA sessions nor had the matter of payment for such attendance been raised in EBA 9 negotiations; and -- 28 of 41 -- 29 • Anderson - his evidence confirmed that some employees were incorrectly informed that they would be paid stand alone time for their attendance at EBA sessions with payment not due to any legal obligation on behalf of the BCC. There had been no claim for attendance at information sessions in October 2017. There were a range of alternatives available to bus operators to be informed on the EBA beyond the sessions in question. [104] There was no clear evidence that supported stand alone payment had been made for bus operators who had attended EBA sessions for EBA 6, EBA 7 and EBA 8 which nullifies the custom and practice argument. Any payments that had been previously made were due to inadvertence or a mistake and not on the basis of any understanding between the parties. Reply to ARTBU October Submissions [105] The claim by Matters that custom and practice existed for the payment of stand alone time for 26 years was refuted on the basis that his affidavit did not contain acceptable evidence to support that proposition. It was not the case that bus operators had an entitlement to stand alone time for a period of 26 years as asserted because the stand alone provision had only been included in EBAs since 2005 (EBA 6). There was no other evidence to support the custom and practice of bus operators being paid for voluntary attendance at EBA sessions. [106] The evidence of Hodgson and Jones confirmed amongst other things that: • Hodgson's understanding on payment for attendance at the sessions was made on an assumption that the payment would be made on stand alone time; • Hodgson gave no evidence that she had been paid for voluntary attendance at information sessions for EBAs 7 and 8; and • Jones in cross-examination confirmed his members were paid their ordinary time for attending the session and not under the stand alone provisions. ARTBU's interpretation of Schedule 10, clause 3.8.12 of EBA 8 [107] The ARTBU submission seemed to argue that under s 171 of the Act there was a requirement to ensure the terms of EBA 9 were explained to employees before a ballot was undertaken which meant that the voluntary sessions for EBA 9 amounted to time worked for "training, consultation and communication" however this was not the case due to the lack of evidence that the circumstances of the stand alone provisions were for payments to attend voluntary information sessions for an EBA. The ARTBU submission about the proper construction of the relevant clause was misconceived. -- 29 of 41 -- 30 Custom and Practice - alleged implied term into EBA 8 [108] The ARTBU in respect of an implied term was misconceived for reasons that included: • it was not an agreed question for arbitration between the parties that there should be applied term that bus operators would be paid stand alone time. Such a claim would impinge on the no extra claims clause in clause 4.8 of EBA 8; and • as a matter of law, the authority relied upon by the ARTBU in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd15 concerned the matter of implication of a term into a contract of insurance not into an enterprise agreement. [109] In a recent decision of a Full Bench of the Fair Work Commission it was relevantly stated that in respect of whether a term could be implied into an enterprise agreement: See DL Employment Pty Ltd v Australian Manufacturing Workers' Union16. The Full Bench had referred to the decision of the Federal Court in Toyota Motor Corp Australia Limited v Marmara17 which stated that an enterprise agreement was an agreement in name only, had more of a legislature character. The Full Bench held: An enterprise agreement is a statutory artefact made by persons specifically empowered in that regard, and under conditions specifically set down, by the FW Act. It is enforceable under that Act, and not otherwise. There is, in the circumstances, no reason to approach the question of legislative intent with a predisposition informed by notions of freedom of contract. [110] Even if custom and practice as alleged existed no such term could be implied into EBA 8 because it is not a contract in respect of which such a term could be implied. Custom and practice - alleged implied terms in the contract of employment [111] No such term can be implied for reasons such as: • no such custom and practice had been proven; • no term will be implied into a contract of employment by custom and practice where as in the present case the conduct of the employer is equivocal in that where the payment had been made it had been made by inadvertence or incorrect advice; and 15 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] 64 ALR 481 16 DL Employment Pty Ltd v Australian Manufacturing Workers' Union [2014] FWCFB 7946 17 Toyota Motor Corp Australia Limited v Marmara [2014] FCAFC 84 at [90] -- 30 of 41 -- 31 • it is contrary to an express agreement made by the ARTBU on behalf of bus operators in regard to stand alone time. Alleged unfairness [112] The ARTBU had submitted that: • Arising from the payment of other Brisbane City Council employees (non-bus operators), it is reasonable to expect that payment was to be made to bus operators as well. • It would therefore be unfair for the respondent to refuse to pay a certain class of employees the same payment that they had received in prior bargaining periods received (sic). [113] This submission was misconceived because alleged unfairness: • was not an agreed question for arbitration; • non-bus operators were paid because they attended in work time; and • alleged unfairness does not create a legal obligation for the BCC to have to pay the bus operators who attended the information sessions. Payment of Willawong bus operators [114] The initial advice received by Mackenzie was that bus operators would be paid for attending the session which resulted in bus operators being paid for their attendance at two sessions pursuant to stand alone time. Prior to the third session Mackenzie was informed by bus operations management that stand alone time would not be paid if bus operators attended the third session. [115] Mackenzie gave evidence he could not recall with any certainty whether bus operators had been paid to attend previous sessions and it was unremarkable that he had sought advice about payment for attendance in the circumstances. His evidence does not establish a custom and practice as alleged. Reply to ARTBU November submissions [116] The argument of the ARTBU that the reference to "communication" in the relevant clause was enlivened by the obligation of the BCC under s 171 of the Act was said to be simplistic and ignored the proper construction of the relevant clause as a whole because: • stand alone time is to be paid for the purposes of training, consultation and communications with employees to whom the relevant clause applies; -- 31 of 41 -- 32 • such training, consultation and communication of employees to whom the relevant clause applied was for training, consultation and communication that was not voluntary but was required by the BCC, in other words, compulsory; and • training, consultation and communication in respect of compulsory training is to be provided by the BCC to bus operators in respect of the performance of their jobs. [117] Attendance at EBA 9 sessions by bus operators: • was voluntary and not compulsory; and • was not in respect of job training. Evidence of Grendon [118] The ARTBU requested the Commission should have no regard for Grendon's evidence at paragraphs 10, 11, 12 and 13 of Exhibit 6 on the basis that her evidence should not be considered in reference to "consultation and communication purposes" as the relevant clause was not ambiguous. The BCC opposes this position in respect of "not ambiguous" because having regard for the words used in the relevant clause and the reference to "Training Time" as the heading of the relevant clause means that the reference to "consultation and communication" is consultation and communication in respect of job training. If the Commission was of the view that the word "communication" is ambiguous then regard may be had to the surrounding circumstances known to the parties at the time of negotiations of the stand alone clause when it was first introduced. Grendon's evidence (AG2 to Exhibit 6) was that the stand alone provision was introduced into EBA 6 for training purposes only. ARTBU on custom and practice [119] There was similar reliance upon views expressed by the BCC in response to the October 2018 submissions in that it was not part of an agreed question for arbitration but also was excluded as a matter of law. Brown's evidence - the petitions [120] Brown attached a number of petitions to his affidavit which were described as hearsay and not admissible in the proceedings. The submissions by the ARTBU on this issue were said to make no reasonable sense and further they were intrinsically unreliable and should not be taken into account. -- 32 of 41 -- 33 Answer to the question [121] The question for arbitration must be answered "No". Conclusion [122] A number of factual matters relevant to the question for arbitration were agreed by parties as follows: (a) Attendance by bus operators at EBA9 Information Sessions between 1 May 2018 and 14 May 2018 was voluntary; (b) The information provided by the Brisbane City Council at the EBA9 Information Sessions between 1 May 2018 and 14 May 2018 was provided for the purposes of section 171(2)(b) of the Industrial Relations Act 2016. (c) There was no data collected at the time of most of the EBA9 information sessions recording who was in attendance. [123] Another matter of fact that emerged in the course of the proceedings was that all employees of the BCC at bus depots with the exception of bus operators were afforded the opportunity to attend EBA 9 information sessions facilitated by the BCC in work time for which their usual remuneration remained unaltered or affected by such attendance. These employees including bus operators also had access to further information in the form of: • EBA 9 news email update; • EBA 9 employee information sessions; • Divisional Manager's notice board; • messages from Divisional Manager; • team meetings; • posters; • Monthly Report News; and • Brightsign Screens located in depots, garages and workshops. [124] Bus operators unlike other BCC employees were required to attend the EBA 9 information sessions in their own time on the basis that they were paid whilst driving a bus with 10 minutes available each side of their shift to sign on and off. -- 33 of 41 -- 34 [125] The question agreed upon for the purposes of arbitration was as follows: The question for arbitration is whether schedule 10, clause 3.8.1 of the Brisbane City Council Certified Agreement 2013, properly construed, means stand alone time in payable to the bus operators who attended the EBA information sessions between 1 May 2018 and 14 May 2018. Fairness and Equity [126] The ARTBU in the prosecution of the case adduced evidence from Luke and Jones, full- time union officials who participated in the negotiations of EBA 9 on behalf of the AMEPKU and QSU (respectively) that was consistent in that their members were entitled to attend the EBA 9 information sessions in paid work time and in the case of Jones his evidence in respect of the payments being made he stated it was "just expected that they would because it has always been that way". This evidence was not disturbed in the course of cross-examination as was their evidence on the voluntary nature of attendance. [127] Clearly all employees with the exception of bus operators within the operation of BCC bus depots were able to attend EBA 9 information sessions if they chose to for the purpose of being briefed and brought up to date on the proposed industrial instrument that was to determine the conditions of their employment for the upcoming three years, prior to a ballot being conducted on the acceptance or otherwise of the proposed EBA. [128] Bus operators on the other hand could also voluntarily attend the EBA information sessions however this was in the absence of any payment and thus such circumstances rendered, in my opinion, the position of the bus operators as inequitable in comparison to other BCC employees at the various bus depots in that it was discriminatory, unbalanced and unfair. [129] That the BCC would condone the inequitable treatment of one group of employees against treatment afforded other employees in the various bus depots operated by the BCC is unreasonable but it was not the task with which the Commission has been charged in respect of this notification. Custom and Practice [130] The ARTBU in their final submissions identified a clear requirement in establishing the existence of custom and practice being that there must be "uniform, notorious, reasonable and certain" factors to demonstrate that custom and practice had been ongoing in that the BCC had paid their employees to attend voluntary EBA information sessions. In this case all employees at the bus depots with the exception of bus operators were paid for their voluntary attendance at the said meetings with the payments being so notoriously uniform and certain that union officials also party to the negotiations had no need to request such payments in the course of negotiations. -- 34 of 41 -- 35 [131] There was reliance upon a citation that raised Halsbury's Laws of England18 writings on the Furnace Demolishers Case19 which established the following principle regarding the existence of custom and practice: Every usage, whether in respect of a particular trade, branch of business or occupation, and whether affecting land or no, must be notorious, certain and reasonable, and it must not offend against the intention of any legislative enactment. Every usage must have acquired a such a notoriety in the particular market or branch of trade or in the department of business or amongst the class of persons who are affected by it (affected by the custom and practice), and that any person in that branch or department or class who enters into a contract of a nature affected by the usage must be taken to have done so with the intention that the usage should form part of the contract. Every usage must be certain. It must be uniform as well as reasonable, and in order to be incorporated as a term in a written contract it must have as much certainty as the written contract itself. [132] Firstly, in respect of employees of the BCC at bus depots other than bus operators there was no question that for those who voluntarily attended EBA 9 information sessions they were paid their normal remuneration without any interference and were not reliant upon the provisions of Schedule 10, clause 3.8.1 of EBA 8. Further evidence existed that such practice was entrenched to a level where union officials of unions with membership and eligibility to recruit had not found it necessary to make any approaches to the BCC for such payment. [133] Applying the requisite standard of proof to the evidence before the proceedings regarding the practice of BCC employees at bus depots other than bus operators voluntarily attending EBA 9 sessions there was a regime in place where those employees did not have their wages "docked" for such attendance and clearly they had not accessed any payment though the stand alone provisions of EBA 8 or any other previous agreement. [134] When assessing the issue of custom and practice regarding the payment for bus operators attending EBA information sessions it is evident that the situation is vastly different from other BCC employees employed at the bus depots firstly because there was no opportunity for them to attend in work time due to the nature of the rosters that define their work practices and secondly as a consequence of the roster arrangements any payment made for attendance at the sessions would be in the form of a discrete payment and not simply an exclusion from normal duties for the period of their attendance. [135] The evidence varied between the witnesses regarding past payments with a degree of diversity in the witness recall. [136] For the ARTBU their most experienced witness was Matters (not required for cross-examination) who had 26 years' experience in his capacity as an officer of the ARTBU in dealing with the BCC and gave evidence about those dealings: 18 Halsbury's Laws of England, 3rd ed., Vol XI, p. 182 19 Furnace Demolishers Case (1960) AR 670 -- 35 of 41 -- 36 5. During my time in this role, I was the lead negotiator for the abovenamed unions including the RTBU in the Brisbane City Council, EBA negotiations for approximately 12 Agreements. 6. Although we are currently at EBA 9, there were some agreements that were amended and rolled over so the EBA number does not accurately reflect the number of negotiations that have occurred during my time in these roles. 7. At various times throughout these negotiations, the subject of payment for attendance at these sessions was raised. 8. In some negotiations it was raised, in some negotiations it was not raised at all. However, throughout all of these EBA negotiations, the one constant is that Bus Operators have always been paid to attend these sessions when they chose to attend them. 9. Sometimes we asked for it, sometimes we didn't, it just happened. [137] As previously mentioned this evidence was unchallenged in the course of the proceedings and whilst according to Matters payments were made there was no evidence regarding the mode of payment pursuant to the stand alone provision. [138] Hodgson claimed to have received payment for attendance at a number of EBA information sessions some of which pre-dated the inclusion of the stand alone provision in the 2013 EBA however her evidence might best be described as "wishy washy" when subject to enquiry through cross-examination. [139] Brown's evidence on the issue of payment for previous attendances at EBA sessions by bus operators was scant to say the least and the petitions attached to his affidavit said to have been completed by a number of bus operators were simply inadmissible and of no assistance to the ARTBU in the prosecution of their case. [140] There was evidence from Mackenzie on behalf of the BCC that confirmed the payment to bus operators for EBA 9 information sessions held at Willawong bus depot on 3 May 2018 however prior to the third session advice was received from the Operations Manager (Anderson) they would not be paid stand alone time if they attended the third session which had the effect of confirming that the stand alone time had been paid for the bus operators who attended the first two sessions. The payment was said to inadvertently been made by the BCC. [141] Briggs, the Manager of the Eagle Farm bus depot, provided an affidavit in the proceeding and was not required for cross-examination. Briggs believed that in respect of EBA 8 in 2013 bus operators were paid stand alone time to attend information sessions. Briggs attached an internal BCC email (dated 20 August 2013) that was sent to the following persons: • Scott Ingham; -- 36 of 41 -- 37 • Mackenzie; • Berghofer; • Miers; • McGraa; • Christen Kittel; • Briggs; • Graeme Morgan; • Alan Geyer; • Alan Warren; and • Katrina Odgaard. [142] The subject of the email was identified as "BT EBA Communication Sessions" and amongst other things the email stated: Council is keen to ensure that only employees who attend the management sessions are paid stand alone time. So without telling you to such [sic] eggs came [sic] you ensure that we have a sign in arrangement for those attending to be a basis of payment of the stand-alone time. [143] Interestingly three persons in receipt of the 2013 BCC internal email, Miers, McGraa and Berghofer, all gave evidence in the proceedings of having no recall of previous payments being made to bus operators for attending previous EBA information sessions. [144] Mackenzie in cross-examination "believed that was the case" in respect of payments being made but was not 100 per cent certain enough to swear under oath. [145] I am satisfied on the evidence before the proceeding that bus operators, certainly in 2013, had been paid stand alone time to attend EBA information sessions clearly with the imprimatur of the BCC which would constitute a past practice existed that cannot be the subject of challenge on the basis of inadvertence or mistake. [146] As with the fairness and equity component, the Commission was not required to arbitrate on the issue of custom and practice by the virtue of the parties having agreed to the question for arbitration. -- 37 of 41 -- 38 Question for arbitration [147] The question for arbitration is whether Schedule 10, clause 3.8.1 of EBA 8, properly construed, means stand alone time in payable to the bus operators who attended the EBA information sessions between 1 May 2018 and 14 May 2018. [148] Clause 3.8 "Training Time" of Schedule 10 of EBA 8 states: 3.8.1 Stand Alone (i) Stand Alone will be worked for training, consultation and communication purposes. Stand Alone time is paid at ordinary rates. Stand Alone time will be for a minimum period of 15 minutes and will not extend for a period of more than two hours and will not be considered in the calculation of overtime and other payments. (ii) An opportunity will be given for employees to complete tasks in Stand Alone time at a time convenient to the employee. If no convenient time can be arranged the time will be scheduled by Brisbane Transport and paid at Stand Alone rates. (iii) Operational arrangements for the completion of tasks in Stand Alone time will be confirmed through local consultation between the parties at the effected work location prior to the commencement of the arrangements. (iv) It is recognised that any activities undertaken in Stand Alone time will not compromise any obligations to ensure that minimum rest periods are taken. [149] The clause had its origins in 2005 when there was agreement for the clause to form part of EBA 6 and from evidence provided in the course of this notification the clause was retained in subsequent agreements in an unaltered form. [150] Grendon provided an attachment to her affidavit which identified BCC file notes regarding "Brisbane City Council Bus Transport Employees Awards EBA 6 Passenger Services Schedule 10". [151] The admissibility or otherwise of evidence of surrounding circumstances is well settled it would appear from authorities than include: • BP Australia Pty Limited v Nyran Pty Limited20; and • Codelfa Construction Pty Ltd v State Rail Authority of NSW21. [152] In BP Australia Pty Limited v Nyran Pty Limited22 Nicholson J stated: 20 BP Australia Pty Limited v Nyran Pty Limited [2003] FCA 520 at [33] 21 Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 at [22] 22 BP Australia Pty Limited v Nyran Pty Limited [2003] FCA 520 at [33] -- 38 of 41 -- 39 It is necessary firstly to determine whether the contract has a plain meaning or contains an ambiguity. If the contract has a plain meaning, evidence of `surrounding circumstances’ will not be admissible to contradict the language of the contract. [153] In Codelfa Construction Pty Ltd v State Rail Authority of NSW23 Mason J stated: The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. [154] In respect of the 3.8.1 Stand Alone provision, the parties are "at odds" on the meaning of the clause which on its own does not establish there is an ambiguity with the wording, sufficient to facilitate the surrounding material attached to Grendon's affidavit in the form of BCC file notes being admitted into the proceeding. [155] The plain reading of the clause in my view does not "throw up" any ambiguity that would warrant the surrounding material contained in the file notes being admitted into the proceedings. [156] Whilst the ARTBU had focussed upon stand alone time being available for "consultation and communication" which would allow for payment for bus operators attending the EBA information sessions because of the nature of the sessions they in my view failed to properly consider the heading of the clause namely "Training Time" which in the ordinary reading of the clause would have "consultation and communication" being applicable for the purposes specifically of training and not consultation or communication around issues such as EBA information session. The position is further reinforced when the content of the full clause in terms of 3.8.1(ii), (iii) and (iv) is read in conjunction with 3.8.1(i). [157] It is acknowledged that the ARTBUs focus on "consultation and communication" was not without some grounds in that evidence from the BCC witnesses in the proceedings identified the use of stand alone time in some bus depots for purposes strictly not related to training. This included: • consultative meetings; • performance review/management; and • team leader forums. 23 Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 at [22] -- 39 of 41 -- 40 It is likely this conduct would be outside of "Training Time" and was contrary to the BCC arguments advanced in this notification. Finding [158] The answer to the question for arbitration on whether Schedule 10, clause 3.8.1 of EBA 8 properly construed, means stand alone is payable to those bus operators who did in fact attend an EBA 9 information session between 1 May 2018 and 14 May 2018 is "NO". Note: In the course of the proceedings, outside of the question for arbitration, there was evidence sufficient to satisfy the requisite standard of proof that in August 2013 bus operators were paid stand alone time for the attendance at EBA information sessions and on that basis it was not unreasonable for bus operators to expect payment in the same or similar circumstances for future EBA information sessions particularly as the 2013 internal BCC email was unequivocal about ensuring that "only employees who attend the management sessions were paid stand alone time". [159] The Commission acknowledges a level of restriction in the determination of the question to be arbitrated that precludes an order being made in these proceedings for payment to be made in respect of the bus operators' attendance at EBA 9 information sessions between 1 May 2018 and 14 May 2018 on the basis of custom and practice even though grounds exist that would warrant such payment being made in the circumstances. [160] The factual circumstances are that in 2013 the BCC authorised stand alone payments for bus operators attending EBA information sessions that had the effect of creating a precedent upon which bus operators were entitled to conclude that such attendances in relation to the 2018 EBA 9 information sessions would be treated the same as was the case previously. [161] The issues of fairness and equity have been the subject of mention (at paragraphs 126, 127, 128 and 129) in this decision and, whilst the Commission lacks a level of authority due to the narrow scope of the question arbitrated, it is not prohibited from making a recommendation that would have the effect of remunerating those bus operators in respect of attendances at EBA 9 information sessions in 2018 and endeavouring to find some common ground in terms of future attendances. There would not be a significant financial impost upon the BCC should they accept the recommendation as the evidence before the proceedings indicates a very small number of bus operators attended the EBA information sessions in any event. In making the recommendation the Commission does so cognisant of s 531(3) of the Act: Also, the commission or Industrial Magistrates Court is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of - (a) the persons immediately concerned; and (b) the community as a whole. -- 40 of 41 -- 41 Recommendation [162] The Commission recommends the following: • that bus operators who attended EBA 9 information sessions between 1 May 2018 and 14 May 2018 be remunerated for those attendances, consistent with arrangements previously endorsed by the BCC in 2013; and • the BCC and ARTBU engage in good faith dialogue for the purposes of reaching an agreed outcome in respect of bus operators attendances at future EBA information sessions. [163] I so order. -- 41 of 41 --