Context is Everything

Australian Rail, Tram and Bus Industry Union-New South Wales Branch v Interail Australia Pty Ltd (2 December 2015)

Taking a narrow view of the meaning of an enterprise agreement (EA) provision to suit a particular purpose has been defeated in an important decision in the Fair Work Commission. And the practical consequences of the decision shore up flexibility, and ultimately productivity, in the workplace concerned.

The case revolved around two interpretations of the rostering arrangements of train drivers. The EA provides that the rosters “shall” provide for at least one weekend of in four. In practice, on numerous occasions, drivers were actually working more than four weekends in a row, and it was this fact that led to the dispute.

The union argued that the basic requirement had to be honoured in line with the wording in the EA. The company argued that these words were but part of a larger rostering scheme set out over a number of provisions of the EA. Additionally, the failure rate of weekends off was partly attributable to re-rostering requirements due to annual leave and other absences. These in turn were catered for elsewhere in the EA.

The FWC canvassed the issues and also important case law about how to interpret enterprise agreement clauses. These cases essentially say that the proper way to deal with interpretation disagreements is to look at the context, the surroundings, as well as the words themselves, before making judgements about what has to apply.

In this case, the FWC said “Put bluntly, the disputed provision cannot be viewed in isolation from other … provisions (the ‘surrounding circumstances’). These other provisions make it abundantly clear that there will be circumstances, in which the one weekend off in four provision on the Master Roster may not apply.” The FWC required the status quo be maintained which included the point that overtime was not due to the drivers.

This decision is important for two reasons: it focuses attention on the fact that EAs are not legislation and therefore nobody expects them to be word-perfect and utterly unambiguous, and secondly, if a particular outcome is to be either avoided or included in an EA, then the drafting must be, in such a case, very precise and thorough. Otherwise, unintended consequences may arise.