Australasian Meat Industry Employees Union v Americold Logistics Limited

[2024] FWC 1134

[2024] FWC 1134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Australasian Meat Industry Employees Union
v

Americold Logistics Limited

(C2023/4065)

COMMISSIONER MATHESON SYDNEY, 1 MAY 2024

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

1. An application has been made by the Australasian Meat Industry Employees Union (AMIEU) pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a dispute in relation to the Americold New South Wales – Enterprise Agreement 2022 (Agreement).

1. Section 738(b) of the Act provides that Division 2 of Part 6-2 of the Act applies if an enterprise agreement includes a term that provides a procedure for dealing with disputes.

1. Section 739(3) provides that in dealing with the dispute the Commission must not exercise any powers limited by the term.

1. Section 739(4) provides that if, in accordance with the term, the parties have agreed that the Commission may arbitrate (however described) the dispute, the Commission may do so.

Initial matters

1. The dispute resolution term is at clause 7.2 of the Agreement. The term provides for the resolution of disputes about a provision of the Agreement, National Employment Standards or the workplace.

1. The term provides that before a matter can be referred to the Commission, the employer, Americold Logistics Limited (Respondent) and affected employee(s) in dispute must genuinely attempt to resolve the dispute at the workplace level. It is not in dispute that this step has been exhausted.

1. The dispute resolution term provides that once referred to the Commission, the parties agree that the Commission may conciliate, mediate and arbitrate upon application by either party.

1. The matter did not resolve despite multiple prior attempts at resolution and the parties agreed to the Commission arbitrating the matter. It is not in dispute that the Commission has the jurisdiction to do so, and a hearing was conducted for this purpose.

1. The dispute raises complex questions in relation to the proper construction of the Agreement and permission for the Respondent to be represented by a paid agent was granted pursuant to s.596(2)(a) on the basis that it would enable the matter to be dealt with more efficiently, taking into account that complexity.

1. The following part-time employees of the Respondent gave evidence for the Applicant in the proceedings:

• Jamie Cao, who has been employed by the Respondent since 8 May 2023;

• David Smith, who has been employed by the Respondent since 17 July 2023;

• Troy Weyland, who has been employed by the Respondent since 17 July 2023.

1. A witness statement was also filed by the Applicant in respect of Lachlan Bartle, who has been employed by the Respondent since 12 September 2022 however Mr Bartle did not appear to give sworn evidence during the hearing.

1. Jason Shultz, Assistant Secretary for the Applicant’s NSW Branch also field a statement for the Applicant.

1. The following witnesses gave evidence for the Respondent:

• Glenn Parkhill, Team Manager for the Arndell Park Distribution Centre South, employed by the Respondent since 22 November 2021;

• Hobson Tongamoa, Team Manager for the Arndell Park Distribution Centre North, employed by the Respondent since 13 June 2017;

• Steven Holiday, the General Manager of the Arndell Park Distribution Centre, employed by the Respondent since 30 April 2012.

What is the dispute about?

1. The dispute is a complex one and after discussions over a lengthy period and a genuine effort by both parties to reach a resolution, the parties conferred and advised the Commission that they were in dispute about two discrete issues. The consent position of the parties was that the dispute should be resolved by the Commission answering the following questions:

1. Does:

(a)   clause 4.1.3 of the Agreement solely set the ordinary hours for a part-time employee; or

(b)   does the Agreement rely on each employee’s letter of offer provided by the employer in clause 2.1.1 (Engagement Letter) to set ordinary hours of work for a part-time employee

until the ordinary hours are changed by mutual agreement between the employer and the employee (Part-time Issue)?

1. Does clause 4.2.8 provide that the employer must provide full-time and part-time employees with an additional shift to work as overtime on one of their non-rostered days per week over engaging a casual employee on ordinary time (Casual Issue)?

1. I will deal with each of the issues separately below.

The ‘Part- time Issue’

1. Despite the way in which the parties have framed the question for determination, at the heart of the dispute is the question of when a part-time employee is entitled to payment of overtime under the Agreement, although the distinction between ordinary hours and overtime hours is relevant for other purposes including leave related matters.

1. Clause 4.2 of the Agreement deals with overtime and clause 4.2.1 provides:

“4.2.1     Overtime

All time worked in excess of the ordinary working hours of this Agreement, shall be deemed overtime and paid for at the rate of time and a half for the first two (2) hours and double time thereafter” (emphasis added).

1. The term “ordinary working hours of this Agreement” as referred to in clause 4.2.1 is not expressly defined in the Agreement.

1. Clause 4.1.3 deals specifically with part-time employees and provides:

“4.1.3     Hours of Work – Part-time Employees

The arrangement of ordinary hours of work for a part-time Employee will be implemented as follows:

(a)   A minimum of twenty (20) hours per week, and less than thirty eight (38) hours per week Monday to Sunday;

(b)   All ordinary hours are to be worked within a minimum of four (4) and a maximum of eight (8) hours provided that the Employer and Employee may agree to work up to twelve (12) hours (exclusive of meal breaks) per shift;

(c)   All ordinary hours are to be worked between 6 am and 7 pm Monday to Sunday. Provided that

i.During peak trading periods the Employer may roster the Employee to commence work at 5.00am Any employee volunteering to commence at 5.00 a.m. can withdraw by giving seven (7) days’ notice; and

ii.an Employee and the Employer can agree, at any time, that the Employee can commence work at 5 am;

(d)   An Employee will receive at least two consecutive days off per seven (7) days unless otherwise mutually agreed between the Employer and the Employee; and

(e)   Seven (7) days notice is required to change starting times or any other time by agreement between the parties.”

1. By way of summary, it is the Applicant’s position that:

• ordinary hours of work for a part-time employee do not only need to be set with regard to clause 4.1.3 but that the Agreement also relies on each employee’s letter referred to in clause 2.1.1 of the Agreement (Engagement Letter) to set ordinary hours, unless those ordinary hours are changed by mutual agreement; and

• time worked outside the parameters of clause 4.1.3 and the contracted hours of work as set out in the Engagement Letter is overtime to be paid at overtime rates (absent mutual agreement to vary the contracted hours of work).

1. By way of summary, the Respondent’s position is that:

·   an employee’s “commencing” ordinary hours for part-time employees are required to be set within the parameters in clause 4.1.3;[1] and

·   any reconstitution or rearrangement of ordinary hours for a part-time employee must also remain within the parameters of clause 4.1.3;[2]

·   overtime is required to be paid if an employee works outside the parameters in clause 4.1.3;[3]

·   the real question in the proceedings is the question as to whether and under what circumstances the Agreement permits the parties to alter the “commencing” hours[4] and whether such alteration results in additional hours worked being characterised as ordinary hours or overtime hours.[5]

Context provided by the parties

1. The Respondent’s Arndell Park Distribution Centre (Arndell Park DC) is a temperature controlled warehouse and storage facility operating every hour and day of the year except Christmas Day and Good Friday.[6] Working at the Ardell Park DC are 189 full time employees, 30 part time employees and 155 casual labour hire employees.[7] The Respondent does not directly employ casual employees although there is provision for it to do so under the Agreement.

1. The Respondent submitted that prior to August 2022, the Ardell Park DC did not employ any part time employees.

1. The Agreement commenced operation in February 2023.

Catalyst for part-time employment

1. As a result of the inclusion of Appendix 2 of the Agreement, the Respondent seeks to directly employ workers that it has engaged via a labour hire company from time to time.[8]

1. In particular, clause A2.4 of Appendix 2 to the Agreement states:

“A2.4     Direct/Indirect casual conversion to permanency

In conjunction with A2.3, a casual Employee (either directly or indirectly employed) who has completed twelve (12) months continuous service with the Employer or at the Employer’s distribution centre, and who has been regularly and systematically engaged may request the Employer, formally in writing, to review the employment status and eligibility for permanency. The Employer will review the individuals request against the eligibility criteria for suitability to the business.

Where the casual Employee meets the eligibility criteria the Employee (sic) will:

a. Convert the Employee to a full time position where the Employee has over the next twelve (12) months worked an average of thirty eight (38) ordinary hours per week; or

b. Convert that Employee to a part time position where the Employee has over the next twelve (12) months worked an average of less than thirty eight (38) ordinary hours per week, provided the part time position offered shall be the average number of hours per week to a maximum of thirty eight (38) hours per week.

c. Casual hours to be based on a 12 month average of ordinary hours worked. If Employee is unsuccessful, Employer will provide feedback.

d. An Employee must not be engaged and re-engaged to avoid any obligation under this Agreement.

….”

1. The Applicant submitted that part-time employment ordinarily comes about as a consequence of the above provision.[9] The evidence supports this with three of the four part-time employees who gave evidence on behalf of the Applicant indicating that they had worked for a labour-hire company before being offered a permanent position with the Respondent.[10]

The expression of interest process

1. The Respondent submitted that in practice:

• casual workers are engaged by a labour hire company;[11]

• it regularly releases expression of interest notifications for conversion to permanent employment to which labour hire workers respond by making an application;[12]

• the expressions of interest notifications include the days of week and contracted hours available.[13]

1. A copy of an expression of interest notification was annexed to the Affidavit of Mr Holiday[14] and states:

“About the Opportunity

We currently have an opportunity for casuals to become permanent part time pickers to work on day and afternoon shift in our Arndell Park South Facility.

The shift times will be varied across Tuesday to Saturday Day and Afternoon Shifts. The current structure will be open to 5am to 11:20am, 11:15am to 5:35pm, and 5:30pm to 11:50pm. EA rates will be applied to these rosters.

Successful applicants who qualify will be required to perform multiple duties whilst on this shift when needed. The duties performed may include but are not limited to the following tasks: picking, in-loading and despatch, general storage, seasonal work etc.”

The ‘Engagement Letter’

1. Clause 2.1.1 of the Agreement states:

“2.1.1  The Employer will give all Employees on engagement a letter setting out the following:

(a)   Employment Category (full-time, part-time or casual).

(b)   Classification.

(c)   Rate of Pay and Status (full-time/part-time or casual).

(d)   The Employee’s commencement date and time.

(e)   The Employee’s commencing contracted hours of work.

(f)    The Employee’s probationary period.

(g)   If the Employee is flexible contract Employee the expected duration of their employment.

(h)   That the Employees (excluding fixed term or flexible contract Employees) will be required to possess or undertake to possess the Certificate Level 3 Warehouse & Distribution Training Course (TDT30102).” (emphasis added)

1. The Respondent submitted that:

• where a casual worker is successful in applying for a part time position with the Respondent they are provided with an Engagement Letter;[15]

• the Engagement Letter prescribes, inter alia, the employee’s ‘standard hours of work’ with most providing for 30 hours per week;[16]

• since June or July 2023 Engagement Letters specify starting and finishing times.[17]This is at least four months after the Agreement commenced operation.

1. The Applicant submitted that:

• at the time of conversion to part-time employment the Respondent offers employees a fixed number of ordinary hours, set days of work and hours of work including start and finishing times;[18]

• the offer is an accept or decline offer and is made in writing, forming their Engagement Letter or employment contract.[19]

1. Attached to the statements of Mr Weyland, Mr Smith and Mr Cao is the Engagement Letter provided by the Respondent.[20] The clause dealing with the hours of work of each employee is now the same except for the days of the week and starting and finishing times described in each letter. By way of example, Mr Weyland’s Engagement Letter states:

“8.         Hours of Work

Your standard hours of work each week will be 30 hours.

Your standard hours of work will be between: Tuesday to Friday, 17:30pm – 23:50pm and Saturday, 11:15am – 17:35pm.

Hours of work may vary and change in the future. Any changes will be notified as per the enterprise agreement.”

1. Clause 8 of Mr Smith and Mr Cao’s Engagement Letters are the same except:

·   Mr Smith’s states that his “standard hours of work will be between: Monday – Friday,  17:30 – 23:50”;[21] and

·   Mr Cao’s states that his “standard hours of work will be between: Monday – Friday, 17:30PM – 23:50PM”.[22]

Rostering and payment practices – employee perspective

1. While part-time employees are provided with specific details of their working hours when offered employment they are not provided with any other roster in writing.[23]

1. The evidence of Mr Weyland, Mr Cao, Mr Bartle and Mr Smith was that they:

• have never seen a roster displaying their days and hours of work;[24] and

• understand that their contract provides them with the number of hours they work, the days they work and the hours they work.[25]

1. Mr Weyland’s evidence was that:

• he would be asked by his manager to work extra hours but not told how these extra hours would be paid.[26]

• he thought he would be paid overtime if he worked extra hours but this did not happen;[27]

• if he wants to work an extra shift he ticks his name on a piece of paper outside the office which indicates the shift is overtime;[28]

• if he works the extra shift he gets paid his ordinary rate until he reaches 38 hours per week and is then paid overtime rates;[29]

• where he has worked additional hours in a week his hours of work are automatically reset back to the hours in his Engagement Letter without anyone having a conversation with him.[30]

1. Mr Cao’s evidence was that sometimes his manager would:

• offer extra hours on the days he works;[31]

• call him in to start early.[32]

1. Mr Cao said that he thought he would be paid overtime rates for the extra time worked and at no time was it indicated to him that this time would be paid at his ordinary rates.[33]

1. Mr Cao also gave evidence that extra work is offered on weekends and in order to work these extra weekend shifts he ticks his name on the paper located on the board and his manager informs him if he will be working.[34] Mr Cao’s evidence is that he gets paid ordinary rates until he reaches 38 hours and gets overtime rates for work in excess of 38 hours.[35]

1. Mr Smith’s evidence was that:

• occasionally his manager would ask if he wanted to stay back on the day;[36]

• sometimes he would be asked if he wanted to stay back the day before but this was not often;[37]

• when he was asked to work back, it was not explained to him that this would be at his ordinary rate of pay;[38]

• to begin with, he thought he would be paid overtime rates and it was not until he received his payslip that he found out he would be paid at ordinary time;[39]

• when he works on a weekend he ticks his name to work overtime on a piece of paper on the board outside the office;[40]

• when he works on a weekend he gets paid his ordinary hours for all hours up to 38 and once he reaches 38 hours he gets paid overtime rates.[41]

1. Attached to Mr Smith’s statement was an example of the ‘piece of paper’ he says he ticks in order to work on weekends[42] (which are not the days of work stated in his Engagement Letter). That piece of paper is entitled ‘WEEKEND OVERTIME WE 30.07.23’. On the left hand column is a list of employee names and it appears to enable an employee to place a tick next to their name in relation to three different shifts across Friday, Saturday and Sunday, presumably indicating that they are willing to work that shift on that day where a tick appears.

1. Mr Bartle filed a statement with the Commission but did not appear during the hearing to give sworn evidence. Mr Bartle’s evidence was that:

• when he was offered a permanent position with the Respondent he understood that he ‘would get a minimum of 30 hours of work per week with the opportunity to flex hours and overtime’;[43]

• his initial employment contract provided him with 30 hours per week: Wednesday to Friday from 1:30pm to 6:30pm and Saturday and Sunday from 10:30am to 6:50pm;[44]

• he holds the understanding that the Respondent can change his ‘work hours by agreement with 7 days’ notice’;[45]

• occasionally his manager asks him to work back and he agrees;[46]

• he expected to be paid at overtime for the additional hours but was not and when he asked about this was told that he doesn’t get overtime until he completes 38 hours of work per week.[47]

1. Mr Bartle also indicated in his statement that recently the Respondent changed his hours and he did not receive anything in writing or formal documentation about this.[48] Mr Holiday’s evidence was that Mr Bartle requested to change his hours of work in May 2023 for personal reasons and the Respondent consented to this change.[49] As Mr Bartle did not appear to give sworn evidence during the hearing, I prefer the sworn evidence of Mr Holiday that Mr Bartle’s ordinary hours were changed upon his request and not at the initiative of the Respondent.

Rostering and payment practices – management perspective

1. Mr Parkhill and Mr Tongamoa are Team Leaders for the Respondent and gave evidence that they are personally responsible for offering extra work and overtime to part-time employees.[50]

1. Mr Parkhill’s evidence was that:

• when a part-time employee commences they are given a base roster;[51]

• from time to time that base roster is changed on the request of an employee,[52]although Mr Parkhill’s evidence during the hearing suggested this was not a common occurrence.

1. Mr Holiday’s evidence was that where the Respondent offers a permanent position to an employee, an email notification is sent to the successful applicant and that email includes the offered base roster.[53] Annexed to Mr Holiday’s Affidavit was an email sent to Mr Weyland on 30 June 2023 stating:

“Good Morning Troy,

I hope you are well.

I would like to speak with you regarding the opportunity to transition over to Americold’s books as a permanent employee. Is this an opportunity you would be interested in?

Your roster would be: Tuesday to Friday 1730-2350 & Saturday 1115-1735, working from our Arndell Park site.

Please let me know if you would like to accept this offer, and I will send through the next steps regarding your pre-employment medical…”

1. Mr Holiday’s evidence is that the Engagement Letter is sent after this when the person passes a medical assessment.[54]

1. The Respondent submitted that in practice:

• a part-time employee’s ‘rostered hours’ are entered into the payroll system, Kronos, and the Respondent does not change these hours unless requested by an employee;[55]

• extra hours that are required to be worked are determined at the Respondent’s daily management meetings and the extra working hours are organised by:

  ooffering overtime hours to full time employees;

  ooffering either ‘extra ordinary hours’ and/or overtime hours to part-time employees; and

  othe remainder of extra hours required are backfilled with labour hire workers;[56]

• where overtime or extra hours are offered in addition to a part-time employee’s rostered hours this occurs verbally or via text message where the employee is not at work, with offers made by the Respondent’s Team Managers;[57]

• a roster sign off sheet is posted in the warehouse where employees can volunteer to work on a day that is outside their existing roster;[58] 

• no part-time employee is directed to work hours in addition to the existing roster and additional hours are performed by agreement.[59]

1. The evidence of Mr Parkhill and Mr Tongamoa was that:

• when they offer extra work to a part-time employee they can reject the offer and many do;

• they have never compelled a part-time employee to work extra hours; and

• as a matter of practice the Respondent does not require a part-time employee to work extra hours in addition to their base roster.[60]

1. The evidence of Mr Parkhill and Mr Tongamoa was that for work on a day that is outside an employee’s roster:

• a sign off sheet is posted in the warehouse for volunteers;

• every employee who applies for overtime or extra hours is provided that work subject to the seniority prescription of the Agreement and overtime principle restrictions in Appendix 1 of the Agreement;

• they usually action the sign off sheet by having a person take it down and then they confirm with the employees that they will be working on one of their non-rostered days.[61]

1. In practice the Respondent pays a part-time employee for ‘extra ordinary hours’ in circumstances where the employee agrees to work ordinary ours in addition to their roster as entered into Kronos, provided that the employee has not exceeded daily or weekly maximum ordinary hours described in clause 4.1.3 of the Agreement and, where relevant, do not exceed the prescribed span for a day or shift worker.[62]

Applicant’s submissions

1. By way of summary, the Applicant submitted that:

·   the elements relating to part-time employees in clause 4.1.3 are “broad and not specific;”[63]

·   the Agreement does not provide a clause to the effect that all hours worked between the minimum 20 hours and 38 referred to in clause 4.1.3(a) are to be paid at ordinary time;

·   clause 4.1.3(a) merely suggests that employees who work between 20 and 38 hours are classified as part-time employees;

·   this gives rise to ambiguity[64] resulting in a need to look at extrinsic material to assist in the interpretation of the Agreement.[65]

1. The Applicant submitted that it is the Engagement Letter which provides the important details to determine the ordinary hours for a part-time employee. [66]

1. The Applicant submitted that:

• the Respondent does not provide employees with rosters;

• the details provided by the Engagement Letter are relied upon by the employees and the Respondent to identify what days and hours of work are required for employees;

• the application of the work pattern in the Engagement Letter makes it clear that these hours are the usual weekly hours of work for part-time employees.[67]

1. The Applicant also pointed to clause 4.1.3(e) which states:

“Seven (7) days notice is required to change starting times or any other time by agreement between the parties”

1. The Applicant submitted that this clause limits the Respondent’s ability to change the start time of an employee and does not provide that the Respondent can change the days on which ordinary hours are worked nor the number of ordinary hours per week.[68] 

1. The Applicant submitted that the Respondent provides additional hours at short notice which are not in accord with the accepted working arrangements between the Respondent and the employee in relation to usual hours of work and these additional hours should be paid at overtime rates.[69]

Respondent’s submissions

1. The Respondent submitted that the Agreement should be interpreted by reference to its provisions read as a whole rather than by cherry picking individual provisions and seeking to interpret them in isolation from the balance of the Agreement.[70]

1. The Respondent submitted that clause 2.1.1 of the Agreement provides that the Respondent shall provide an Engagement Letter to an employee, requiring as one of its terms that it set out:

“The Employee’s commencing contracted hours of work.” (emphasis added).

1. The Respondent submitted that:

• in order for the employee to commence as a part-time employee that offer must be accepted, at which time a binding agreement is made which includes each of the terms offered in the Engagement Letter;

• the employment contract is thereafter regulated by the Agreement;

• as such, clause 2.1.1 does not set hours (commencing or otherwise) but relies upon the parties to do so through the medium of the Engagement Letter;

• the fact that hours of work required to be set out in the Engagement Letter are specifically referred to in the Agreement as the ‘commencing’ contracted hours of work is an acknowledgement that those agreed hours are not to be treated as having been rigidly set for any particular period of time, and are therefore amenable to change from time to time;

• while the ‘commencing’ hours have been set by the agreement of the parties via the Engagement Letter, the balance of the Agreement should not be interpreted as constraining the ability of the parties to re-set those hours as and when they see fit.[71]

1. In this regard, the Respondent submits that:

·   the ‘real question’ underpinning the part-time question in the proceedings is the question of whether and under what circumstances the Agreement permits the parties to alter the ‘commencing hours’; and

·   the question appears to accept that such change by mutual consent is possible;

·   in that case there is a question of whether any mechanism for altering the ‘commencing’ contracted hours results in any additional hours worked being characterised as ordinary hours or overtime hours.[72]

1. The Respondent submitted that clauses 4.1.3(a) – (d) (inclusive) prescribe the outer limits for the number and incidence of ordinary hours that characterise an employee as a part-time employee, that is:

·   they are entitled to a minimum of 20 ordinary hours and a maximum of 38 hours per week, Monday – Sunday;

·   they are also entitled to a minimum number of four hours or a maximum of eight hours per day (or up to 12 by mutual agreement); and

·   all ordinary hours are to be worked between 6am and 7pm Monday to Sunday (subject to some conditions and unless they are a shift worker).[73]

1. The Respondent submitted that:

• the agreed ‘commencing’ ordinary hours must fit within these paraments and any rearrangement or reconstitution of the ordinary hours of a part-time employee must also remain within those parameters;[74]

• this interpretation arises, inter alia, from the prefatory words of clause 4.1.3 which provides that ‘The arrangement of ordinary hours for a part-time Employee will be implemented’ in accordance with the balance of that clause.[75]

1. In respect of the payment of overtime, the Respondent noted that clause 4.2.1 of the Agreement provides that overtime will be payable for ‘All time worked in excess of the ordinary hours of this Agreement’ and submitted that any hours worked outside the parameters in clause 4.1.3 will be treated as overtime.[76]

1. The Respondent submitted while clause 4.1.3(e) may be considered ‘somewhat ungrammatical’ it provides that seven days’ notice is required for directed changes to the start or finish times or ‘by agreement at any other time by agreement’ between the parties.[77] The Respondent submitted that:

• as subclause 4.1.3(e) appears in the clause dealing with the arrangement of ordinary hours of work, it must be interpreted as referring to alterations to the ordinary hours of work, which are either changes (inferentially directed) on seven days’ notice, or at other times by agreement between the parties;

• logically, the only way ordinary hours can be changed in accordance with the permission granted or contemplated under clause 4.1.3(e) is to change the existing ordinary hours that may be in force as between the parties;[78]

• there is no limit to the change of the scope of ordinary hours for part-time employees other than the standards prescribed in clause 4.1.3 and if any hours worked fall within those limits, they are by definition ordinary hours;[79]

• if the employer either provides the required notice or seeks and obtains the agreement of the employee to an alteration of pre-existing hours, or start or finish times, then all such hours which are worked within the terms of clause 4.1.3(a)-(d) are ordinary hours.[80]

1. The Respondent submitted that its interpretation is confirmed by clause 4.3 of the Agreement[81] which provides:

“4.3       ROSTERS/SCHEDULING

4.3.1    Roster Posting

Employees will be provided with a roster.

4.3.2    Roster Changes – Full time employees

Any permanent roster change must be provided to the employee in writing with a minimum of seven (7) days’ notice, provided that an employee’s roster may be changed by mutual agreement at any time.

4.3.3    Rosters – variation to start and or finish time

The Employer may require an Employee to vary their start and or finish time with forty eight (48) hours’ notice. Where the Employer varies the start and or finish time for peak periods it will provide seven (7) days’ notice. Provided that the Employer and an Employee may agree to a lesser or no period of notice to alter an Employee’s start and or finish time.

4.3.4    Minimum Break between Shifts

The Employer shall provide an Employee with a minimum break of eight (8) hours between an Employee’s finishing time on one (1) engagement (including overtime) and commencing time on the next engagement.”

1. The Respondent submitted that:

• subclause 4.3.1 requires that ‘Employees will be provided with a roster’ and this applies to all employees, including part-time employees;

• subclause 4.3.2 does not apply to part-time employees;

• subclause 4.3.3 allows for a change of hours rostered for part-time employees but this is subject to the operation of subclause 4.1.3(d);

• subclause 4.3.4 provides that an employee will have an eight hour break between finishing one engagement and commencing the next.[82]

1. In summary, the Respondent submitted that the Agreement enables it to set and vary the ordinary hours of work for a part-time employee within the prescriptions of clause 4.1.3 and 4.3 and that overtime is payable pursuant to clause 4.2 when an employee is required to work in excess of those specified ordinary hours of work contained at clause 4.1.3 or 4.1.4 (together with clause 3.5).[83]

1. In relation to the Applicant’s submissions the Respondent:

• rejected that the Agreement does not provide rosters for part-time employees and submitted that each employee is notified in writing on commencement and then verbally for any changes with the roster created and maintained in Kronos;[84]

• rejected the Applicant’s submissions that “Given there are no rosters displayed by the Respondent the letter of appointment retains its standing until otherwise agreed to change. The same proposition must be applied for the fixed number of work hours”[85]and instead submitted that there exists no clause of the Agreement that provides a linkage between the Engagement Letter and the overtime clause;[86]

• submitted that rosters are not only subject to change by agreement but can be changed by direction;[87]

• submitted that there is no prescription under the Agreement that requires roster changes to be agreed.[88]

Submissions regarding Recommendation in Health Services Union v Jones Holding Co Pty Ltd T/A Jones Radiology

1. The Applicant referred to the Recommendation of Commissioner Platt in Health Services Union v Jones Holding Co Pty Ltd T/A Jones Radiology[89] in which the Commissioner stated:

“[15] 16 August 2022, Ms Blenkiron and the Respondent agreed to vary the contract of employment such that the hours to be worked were 45 hours per week plus reasonable additional hours. In addition, the following clause was added:

“From time to time the Employer may offer you extra shifts in addition to your

ordinary hours of work set out above, or you may request additional shifts. In either case, acceptance by you of these additional shifts will include acceptance by you that your ordinary hours for that week will be varied to include the additional shifts and they will be paid at your ordinary rate of pay. Overtime rates will only be paid if you work in excess of 37.5 hours per week (averaged fortnightly) or 7.5 hours per day.””

1. The Applicant submitted that in the current matter, agreement to work additional hours does not amount to an agreement to vary the contractual arrangements provided by the Engagement Letter and this is reflected in the employee and Respondent’s actions in the preceding week where the Respondent and the employee engage in the new week at the days and times set out in the Engagement Letter.[90]

1. In Health Services Union v Jones Holding Co Pty Ltd T/A Jones Radiology[91] the Commissioner went on to state:

“[20]     The difficulty in this matter is the lack of definition about the hours of work under the existing part-time employment contract.

[21] In addition, it appears (as a result of the 16 August 2022 variation) that any additional shifts offered by the Respondent must be agreed. If the additional shifts were not agreed, it would appear that overtime rates would be payable pursuant to clause 25.1(d) of the 2020 Award even if the 37.5 threshold had not been met.

[22] The Applicant is aware of its capacity to test these matters in the Federal Court. Obviously, such and (sic) application would put the Respondent at risk of civil penalty and an underpayment of wages claim for similarly impacted employees which could date back up to six years.”[92]

1. The Applicant submitted that neither the Agreement nor the Engagement Letter have a clause which would result in all hours worked between 20 and 38 hours being paid at ordinary pay and that the Commission should resolve that the Engagement Letter provides the important details so as to determine a part-time employee’s ordinary hours.[93]

1. The Respondent submitted that the Recommendation issued by Commissioner Platt in Health Services Union v Jones Holding Co Pty Ltd T/A Jones Radiology[94]does not have any bearing on this matter and noted the recommendation was not agreed by the employer party and concerned the payment of overtime to a part-time employee pursuant to their contract and the Health Professionals and Support Services Award 2020.[95]

1. The Respondent also rejected the Applicant’s submissions that “agreement to work additional hours does not amount to an agreement to vary the contractual arrangements provided by the letter of engagement”[96] submitting that the Applicant’s submission contradicts contract law.[97] The Respondent submitted that:

• the Agreement requires the provision of an Engagement Letter setting out the commencing hours;

• the Engagement Letter specifically allows for the variation of ‘standard hours of work, stating:

“Hours of work may vary and change in the future. Any changes will be notified as per the enterprise agreement”;

• the other terms of the Agreement point to a similar entitlement on the part of the parties to seek and reach agreement on hours different to those which may have been originally appointed or subsequently changed;

• having reached agreement the Agreement regulates the rate of pay to which an employee is entitled for working those hours (clauses 4.1.3 and 4.2).[98]

Consideration

Principles for interpreting enterprise agreements

1. The principles regarding the interpretation of enterprise agreements are well settled. In AMWU v Berri Pty Ltd[99] (Berri), a Full Bench of the Commission summarised those principles as follows:

“1. 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 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.

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

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

11. 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. 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.

12. Evidence of objective background facts will include:

(i)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;

(ii)notorious facts of which knowledge is to be presumed; and

(iii)evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision 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.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”[100]

1. In James Cook University v Ridd,[101] the Full Court of the Federal Court of Australia summarised the principles as follows (references omitted):

“(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind”. The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose”.

(iii) Context is not confined to the words of the 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”.

(iv) Context may include “... ideas that gave rise to an expression in a document from which it has been taken”.

(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...”.

(vi) A generous construction is preferred over a strictly literal approach, but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties”.

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.”[102]

1. The Full Court of the Federal Court in WorkPac Pty Ltd v Skene[103] articulated the approach to be adopted as follows:

“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”

1. As noted in the decisions referred to above, the starting point in considering the proper interpretation of the Agreement is to consider the ordinary meaning of the words, read as a whole and in context.

The entitlement to overtime

1. Notwithstanding the way in which the question for determination is framed by the parties, it is apparent that the key issue in dispute is when part-time employees are entitled to payment of overtime at overtime rates.

1. Clause 4.2 describes the circumstances in which working time “shall be deemed overtime” and paid at overtime rates. In particular:

• clause 4.2.1 provides:

“4.2.1  Overtime

All time worked in excess of the ordinary working hours of this Agreement, shall be deemed overtime and paid for at the rate of time and a half for the first two (2) hours and double time thereafter.” (emphasis added);

• clause 4.2.3 provides:

“4.2.3  Overtime- Afternoon & Night Shift Workers

All time worked in excess of the ordinary working hours of this Agreement by an afternoon or night shift Employee, shall be deemed overtime and paid for at the rate of double time.” (emphasis added);

• clause 4.2.4 provides:

“4.2.4  Overtime- Early Morning Shift Workers

Where an early morning shift worker works their ordinary hours Monday to Friday all time worked in excess of the ordinary working hours of this Agreement by an early morning shift Employee, shall be deemed overtime and paid for at the rate of double time on Monday to Friday.”

1. Much of the balance of clause 4.2 is concerned with the rates at which overtime is paid when it is worked at certain times. In particular:

• clause 4.2.2 deals with the overtime rate that will apply when overtime is worked prior to 6am;

• the second clause 4.2.5 (noting that there is a replication of clause numbering) provides that when a full time employee is rostered to work ordinary hours on a Saturday they will be paid at double time for overtime worked on a Saturday;

• clause 4.2.6 provides that overtime worked on Sunday will be paid at double time.

What are the ‘ordinary working hours of this Agreement’?

1. Overtime, according to clause 4.2.1, is ‘time worked in excess of the ordinary working hours of this Agreement’. The term ‘ordinary working hours of this Agreement’ is not specifically defined in the Agreement and a question arises regarding what ‘the ordinary working hours of this Agreement’ are.

1. While the term ‘the ordinary working hours of this Agreement’ is not defined, the reference to ‘this Agreement’ suggests that this is the source from which ‘ordinary working hours’ are to be derived. This requires examination of the broader terms of the Agreement.

Clause 1.2 of the Agreement

1. Clause 1.2 of the Agreement sets out definitions of terms for the purposes of the Agreement.

1. In this regard, the term ‘ordinary hours of work’ is a defined in clause 1.2 of the Agreement as:

“the relevant hours of work set out in clause 4.1 of this Agreement.”

1. The Applicant submitted that clause 1.2 is of ‘no aid’ in determining the meaning of ordinary hours for an employee as it refers back to the clause in contention.[104]

1. The Respondent submitted that clause 1.2 is of assistance as it defines “Ordinary hours of work” as those set out in clause 4.1, which in turn is relied on by clause 4.2 (Overtime) to determine when overtime is payable.[105]

1. The term ‘ordinary hours of work’ appears in multiple terms of the Agreement, including:

• in the definition of ‘Base rate of pay’ in clause 1.2 which is defined to mean “the rate of pay payable to the employee for their ordinary hours of work, but not including incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts”;

• in clauses 4.1.2, 4.1.3 and 4.1.4 which deal with the “arrangement of ordinary hours of work” for full-time employees, part-time employees and shift workers;

• in clause 5.1.2 which refers to annual leave accruing according to an employee’s ordinary hours of work;

• in clause 5.2.1.4 which refers to payment for paid personal/carer’s leave at the employee’s base rate in respect of the employee’s ordinary hours of work in the period;

• in clause 5.2.5.3 which refers to payment for compassionate leave at the employee’s full rate of pay for the employee’s ordinary hours of work in the period.

1. The model consultation clause is incorporated as a term of the Agreement pursuant to s.205(2) of the Act and deals with proposed changes to ordinary hours of work (emphasis added)[106], although the incorporation of this term did not arise as a consequence of bargaining.

1. There is a practical need for a distinction between ‘ordinary hours of work’ and those that are not for a range of purposes under the Agreement including accrual of annual leave under the Agreement (clause 5.1.2) and determining an employee’s entitlement to paid personal/carer’s leave and compassionate leave (clauses 5.2.1.4 and 5.2.5.3).  By way of example, if an employee is sick and unable to come to work for a period, the Respondent will need to know what a part time employee’s ordinary hours of work are to see if the period of absence coincides with those ordinary hours of work such that they should be paid in accordance with clause 5.2.1.4.

1. The Agreement does not appear to contemplate a special category of hours that are not ordinary hours of work, for the purposes identified above, and which are not paid at overtime rates. Despite the inconsistency in terminology, it is apparent that the terms ‘ordinary hours of work’ as referred to in clause 1.2 and ‘ordinary working hours of this Agreement’ as referred to in clause 4.2.1 must have been intended as a reference to the same thing with the consequence that hours worked that do not fall within the meaning of these terms are ‘overtime’.

Parameters in clause 4.1 for setting ordinary hours of work

1. As noted in the definition above, clause 1.2 defines the ‘ordinary hours of work’ as the ‘relevant hours of work set out in clause 4.1’.  Clause 4.1 deals with a range of matters concerning hours of work.

1. Clause 4.1.1 provides:

“4.1.1.    General

(a)   The ordinary hours may be worked in any of the following ways by agreement:

i.Five (5) equal days each seven (7) days.

ii.Nineteen (19) equal days in each twenty eight (28) day cycle.

iii.Four (4) equal days and one (1) short day each seven (7) days.

iv.Four (4) equal days each seven (7) days.

v.Three (3) equal days over five (5) weeks and four (4) equal days in the sixth (6^th) week.

vi.All ordinary hours shall be worked in consecutive days unless by agreement with the Employee such agreement to be in writing.

(b)   Circumstances may arise where different methods of operating the 38-hours week apply to different groups or sections of employees within the business of an employer.”

1. A number observations may be made about clause 4.1.1:

1. it does not actually state what the ‘ordinary hours of work’ are but, as indicated in the chapeau to clause 4.4.1(a), describes how the ‘ordinary hours’ may be worked;

2. clause 4.1.1(a) requires agreement regarding the way in which ordinary hours will be worked;

3. the clause is titled ‘General’ and does not expressly stipulate that it is limited to any employment type.

1. A question arises as to whether it is intended that clause 4.1.1(a) has application to all employment types. This is because it is implicit within the clause that the ordinary hours referred to in clause 4.1.1(a) are concerned with a full time workload and the number and length of shifts to be offered across that workload.  This is confirmed by clause 4.1.1(b) which refers to ‘different methods of operating the 38-hour week’. Clause 4.1.1(b) suggests that the options set out in clause 4.1.1(a) are not exhaustive and different ‘groups’ or ‘sections’ of employees may apply ‘different methods of operating the 38-hour week’. Part-time employees do not work a 38 hour week.

1. Read in context, it is apparent that clause 4.1.1 is generally concerned with the method of organising working hours within the business rather than prescribing the ordinary hours of individual employees. The exception to this is clause 4.1.1(a)(vi) which would require an individual employee’s days of work to be rostered consecutively unless there is a written agreement to the contrary. It is otherwise of little assistance in understanding an employee’s actual ordinary hours of work.

1. Clause 4.1.2 deals with hours of work for full time employees. While the dispute relates to part-time employees, which are dealt with in clause 4.1.3, the two clauses have a number of similar features. Clause 4.1.2 states:

“4.1.2     Hours of Work – Full-time Employees

(a)   The arrangement of ordinary hours of work for a full-time Employee will be implemented as follows:

(b)   An Employee maybe (sic) rostered to work an average of thirty eight (38) hours per week Monday to Sunday;

(c)   All ordinary hours are to be worked within a minimum of four (4) and a maximum of eight (8) hours provided that the Employer and Employee may agree to work up to twelve (12) hours (exclusive of meal breaks) per shift;

(d)   All ordinary hours are to be worked between 6 am and 7 pm Monday to Sunday. Provided that:

i.During peak trading periods the Employer may roster the Employee to commence work at 5.00 am; and

ii.An Employee and the Employer can agree, at any time, that the Employee can commence work at 5 am. Any employee volunteering to commence at 5.00 a.m. can withdraw by giving seven (7) days’ notice;

(e)   An Employee will not be rostered to work ordinary hours on no more than five (5) consecutive days per week; and

(f)    Seven (7) days notice is required to change starting times or any other time by agreement between the parties”.

1. In comparison, clause 4.1.3 dealing with part-time employees provides:

“4.1.3     Hours of Work – Part-time Employees

The arrangement of ordinary hours of work for a part-time Employee will be implemented as follows:

(a)   A minimum of twenty (20) hours per week, and less than thirty eight (38) hours per week Monday to Sunday;

(b)   All ordinary hours are to be worked within a minimum of four (4) and a maximum of eight (8) hours provided that the Employer and Employee may agree to work up to twelve (12) hours (exclusive of meal breaks) per shift;

(c)   All ordinary hours are to be worked between 6 am and 7 pm Monday to Sunday. Provided that:

i.During peak trading periods the Employer may roster the Employee to commence work at 5.00 am Any employee volunteering to commence at 5.00 a.m. can withdraw by giving seven (7) days’ notice; and

ii.An Employee and the Employer can agree, at any time, that the Employee can commence work at 5 am;

(d)   An Employee will receive at least two consecutive days off per seven (7) days unless otherwise mutually agreed between the Employer and the Employee; and

(e)   Seven (7) days notice is required to change starting times or any other time by agreement between the parties”.

1. Clause 4.1.5 deals with casual employees and provides:

“4.1.5 Hours of Work – Casual Employee

Casual Employees shall be paid one thirty eighth (1/38th) of the appropriate weekly rate plus 23.3% per hour and may work within the following arrangement of ordinary hours:

(a)   An Employee maybe rostered to work an average of thirty eight (38) hours per week Monday to Sunday;

(b)   All ordinary hours are to be worked within a minimum of four (4) and a maximum of eight (8) hours provided that the Employer and Employee may agree to work up to twelve (12) hours (exclusive of meal breaks) per shift;

(c)   All ordinary hours are to be worked between 6 am and 7 pm Monday to Sunday. Provided that

i.During peak periods the Employer may roster the Employee to commence work at 5.00 am; and

ii.An Employee and the Employer can agree, at any time, that the Employee can commence work at 5 am. Any employee volunteering to commence at 5.00 a.m. can withdraw by giving seven (7) days' notice;

(d)   The casual loading shall not be paid on overtime to casual Employees; and

(e)  The following formula will be used to calculate the applicable casual rate where a relevant penalty percentage applies …”

1. The above clauses set out the rules for implementation of ordinary hours for each full time, part time and casual employees with the key differences being that:

• a full time employee and a casual employee may be rostered to work an average of 38 hours per week Monday to Sunday;

• a part-time employee’s hours will be at least 20 hours and less than 38 hours per week Monday to Sunday.

1. There are however two further types of employment referred to within the Agreement where the parameters for ordinary hours are less prescriptive. In particular, clause 4.1.4 deals with hours of work for ‘Shift Workers’ and provides:

“4.1.4     Hours of Work – Shift Workers

The arrangements of ordinary hours of work for Shift Workers may be implemented within the following:-

(a)   A maximum thirty eight (38) hours per week Monday to Sunday; and

(b)   All ordinary hours are to be worked within a minimum of four (4) and a maximum of eight (8) hours provided that the Employer and Employee may agree to work up to twelve (12) hours (exclusive of meal breaks) per shift.”

1. Unlike the other categories of employment referred to above the implementation of ordinary hours for a shift worker does not require ordinary hours to be worked within the 6am/5am to 7pm span of hours.

1. Clause 4.1.6. deals with ‘Flexible Contract Employees’ defined in clause 1.2 to mean:

“…an employee engaged as such on either a full-time or part-time basis for a minimum

engagement of three (3) month and a maximum engagement of twelve (12) months in
accordance with one of the classifications under the Agreement. (i.e. an employee engaged under this clause will be used for short term contracts, contract start ups, contract ends, building refurbishments or relocations, replacement of employees on leave (i.e. parental, long service and extended leave without pay)).”

and provides:

“4.1.6   Flexible Contract Employee

A Flexible Contract Employee (please see the definition at clause 1.2 of the Agreement) shall be engaged as required by the Employer. All benefits will be paid on a pro-rata basis of the full-time requirement.”

1. Clause 4.1.7 deals with weekend work and provides:

“4.1.7 Weekend Work

Any Employee rostered to work on Saturday or Sunday, as part of their ordinary hours shall be rostered one (1) weekend off in each four (4) week cycle, unless otherwise agreed between the Employer and the Employee in writing.”

1. The final clause in clause 4.1 relates to a seven day roster and provides:

“4.1.8 Seven Day Roster

A seven day roster system may be used throughout the Arndell Park and Prospect Distribution Centres, wherever a seven (7) day operations is required. The roster does not include an RDO. Over the 6 weeks there are forty (40) ordinary hours worked per week on average.”

1. What is clear from the above, is that clause 4.1 does not provide a part-time employee with specificity regarding when they are required to work. It does not, for example, provide any certainty regarding what an employee’s ‘ordinary hours of work’ will be for the purposes of accrual of annual leave under the Agreement (clause 5.1.2) and determining an employee’s entitlement to paid personal/carer’s leave and compassionate leave (clauses 5.2.1.4 and 5.2.5.3) but simply provides parameters within which ordinary hours may be set.

1. Turning back to the definition of ‘Ordinary hours of work’ at clause 1.2, it seems more likely that ‘the relevant hours of work set out in clause 4.1 of this Agreement’ was intended to mean the actual ‘ordinary hours of work’ for an employee set within the parameters of clause 4.1. As clause 4.1 does not prescribe what an employee’s actual ‘ordinary hours of work’ are these must be set via some other mechanism.

The ’roster’

1. In this regard, clause 4.3.1 provides:

“4.3.1     Roster Posting

Employees will be provided with a roster.”

1. This is expressed as an unqualified requirement applying to all employees (whether part time, full time or otherwise). The provision of a roster would, in practice, describe when an employee is required to present for work. The existence of a roster is also contemplated in clause 4.1 for each of the categories of employment (see clauses 4.1.2(b), 4.1.2(d)(i), 4.1.2(e), 4.1.3(c)(i), 4.1.5(a), 4.1.5(c)(i)).

1. However, the employees who gave evidence in the proceedings indicated that they do not actually receive a ‘roster’ and understand that their ordinary hours of work come from their Engagement Letter. The Respondent’s submissions and the evidence of its managers suggest that the communication of working hours on engagement (whether through the Engagement Letter or the earlier offer email) is relied on by the Respondent to fulfil the obligation in clause 4.3.1 and it is these hours that are entered into the payroll system Kronos as the employee’s ordinary hours. An Engagement Letter would not ordinarily be described as a ‘roster’ in the ordinary industrial sense however regardless as to the label affixed to that document, it is apparent that both parties understand that these documents describe the ordinary hours of a part-time employee, at least initially. I also note that annexed to Mr Holiday’s Affidavit was an email sent to Mr Weyland on 30 June 2023 stating:

“Your roster would be: Tuesday to Friday 1730-2350 & Saturday 1115-1735, working from our Arndell Park site”.

These are the hours that were ultimately reflected in Mr Weyland’s Engagement Letter.

1. It appears that it is the intention of the Respondent to communicate the ‘roster’ at the time of engagement and in practice, and as to be expected of a roster, those documents set out the weekly hours, days of the week, and starting and finishing times. It is these ‘rostered hours’ that are entered into the payroll system, Kronos, and the Respondent does not change these hours unless requested by an employee.[107]

Can the Respondent change the roster?

1. If the ‘ordinary hours of work’ are to be derived from the ‘roster’, and the Respondent is relying on the offer documentation in satisfying the obligation in clause 4.3.1 to provide the ‘roster’, a question arises as to whether the ‘roster’ can be changed and whether those hours worked outside the roster are to be treated as overtime.

1. The Applicant sought to rely on findings made by the Full Bench in AMIEU v Diamond Valley Pork Pty Ltd[108] which concerned the following clause of the Diamond Valley Pork Pty Ltd and Australasian Meat Industry Employees’ Union (Victorian Branch) Meat Processing Enterprise Agreement 2019 [AE506581] (Diamond Valley Agreement):

“5.2       Part Time Employment

a)   An employee with part time employment is known as a Part Time Employee.

b)   A Part Time Employee is engaged by the week as a part time weekly hire employee to work on a regular basis less than 38 Ordinary Hours of Work and with a specified minimum number of hours each week.

c)   A Part Time Employee will accrue leave on a pro-rata basis based on the

specified number of hours worked each week.

c)   A Part Time Employee will be provided with a minimum of four hours work

or be paid for a minimum of four hours on any day they are required to

work.

d)   The Company will advise a Part Time Employee by the Friday before the

next working week of the pattern of work to be worked by the Part Time

Employee.

e)   All time worked in excess of the hours as mutually agreed will be overtime.” 

1. The Applicant submitted that the above clause is not dissimilar to clause 4.1.3 of the Agreement but that the distinguishing difference is clause 4.1.3(a) which provides for a minimum of 20 hours per week.

1. In AMIEU v Diamond Valley Pork[109] the Deputy President found at first instance that part-time employees under the Diamond Valley Agreement were engaged on a week-to -week basis for a minimum number of working hours determined for each week by the employer and that any hours worked in addition to these minimum specified hours would be paid as overtime.[110] I agree with the Respondent that the issues in contention in that matter are distinguishable from the current matter, particularly as the matter of AMIEU v Diamond Valley Pork involved consideration of the term ‘part-time weekly hire’[111] whereas the current matter deals with a different question.

1. The Full Bench on Appeal found that the Deputy President’s findings at first instance established “a putative novel form of employment that bears little relationship to the established industrial conception of part-time employment”[112] in that it:

• was not permanent (i.e. continuing indefinitely subject to termination on a prescribed period of notice);

• did not involve any fixed number of hours per week;

• did not involve any certainty as to days upon which work is performed or as to starting and finishing times; and

• did not involve the pro-rata provision of benefits of full-time employment (because there was no fixed number of hours of work allowing for the stable provision of such benefits on a proportional basis).[113]

1. The Full Bench observed that the Deputy President’s findings would mean the Diamond Valley Agreement provided for a form of employment ‘best described as a weekly analogue of casual employment’ whereby:

• beyond each weekly engagement there is no advance commitment to continuing and indefinite work;

• it would be open for the employer to offer as little or as many hours as it saw fit, including zero hours;

• because the putative form of employment required agreement at the end of each week as to the hours to be worked the following week, the absence of agreement would result in no work being performed.

1. The Full Bench found that the words “…engaged by the week as a part-time weekly hire employee…’ in clause 5.2(b), read in the context of the Agreement as a whole, were not capable for being construed as establishing the novel form of employment propounded in the decision at first instance because:

• the term ‘weekly hire employee’ could not mean engaged afresh each on a new arrangement because a full-time employee was also described as a ‘weekly hire employee’ in the agreement and were guaranteed 38 hours a week by clause 5.1(c) of the agreement, consistent with the usual concept of full time employment;[114]

• clause 5.2(b) stated that a definitional characteristic of part-time employment involved engagement ‘…to work on a regular basis…’ and this was to be contrasted to the characterisation of casual employment in clause 5.3(a) as engagement ‘on an irregular basis’ and ‘[w]ith no ongoing guarantee of work’;[115]

• it did not stand with the description of part time employment in clause 5.4 as being permanent in nature;[116]

• clause 9 provided for part-time employees to be initially appointed for a qualifying period of six months, suggesting that employment beyond the qualifying period would be permanent or ongoing;[117]

• clauses 12.1, 12.3 and 12.4 provided that any non-casual employee (including a part-time employee) needed to be terminated with notice however this provision would be nugatory if a part time employee could be engaged pursuant to a series of weekly fixed term contracts;[118]

• the provision for severance pay in clause 14 was intended to apply to part-time as well as full-time employees (since it was stated to be applicable to all employees other than casuals) and as with the notice provision, the notion of termination would be rendered nugatory for part-time employees if they were engaged and re-engaged by the week;[119]

• the notion of ‘weeks’ pay’ upon which the severance pay scale is based would be unquantifiable and unworkable for part-time employees if they have no standard number of ordinary working hours per week;[120]

• the Diamond Valley Agreement provided for entitlements to annual leave and personal leave that would apply to part-time employees on a pro-rata basis based on their ordinary hours of work. The approach taken in the decision at first instance would mean part-time employees would not have any standard ordinary hours and it would not be practically possible for a week’s annual leave or a day’s personal leave to be calculated and paid on a pro-rata basis when leave is taken.[121]

1. Following its rejection of the form of employment the Deputy President found to exist at first instance, the Full Bench found:

• clause 5.2(b) provided that part-time employees are required to work “on a regular basis” and context is given to this by the requirement that they have a “specified minimum number of hours each week”. The Full Bench found that consistent with the usual conception of part time employment and on the ordinary meaning of the words used (noting that “each” means “every, of two or more considered individually or one by one”) this is to be understood as meaning there must be a minimum number of hours that is specified uniformly for every week of the employment and this minimum number of hours is to be arrived at by mutual agreement (consistent with the casual conversion provision which required agreement);[122]

• clause 5.2(e) of the Diamond Valley Agreement allowed the employer to advise a part-time employee of their ‘pattern of work’ week to week with the effect that they could alter when those hours set under clause 5.2(b) could be worked;[123]

• the approach rendered clause 5.2 of the Diamond Valley Agreement broadly consistent with clause 10 of the Meat Industry Award in that both clauses “broadly aligned in the sense that they both require that a part-time employee have a fixed number of ordinary hours each week, but allow the employer the flexibility to establish the pattern of days and times during the week when such hours are to be worked, subject to the requirement of reasonable predictability and a minimum daily engagement of 4 hours”;[124]

• that:

“Once the nature of part-time employment under clause 5.2 is properly understood, clause 5.2(f) affords a straightforward answer to the issue in dispute concerning the entitlement of part-time employees to overtime. It provides in unambiguous terms that any hours worked in excess of the part-time employee’s agreed minimum weekly hours will be overtime, thus attracting the overtime penalty rates in clauses 7.3-7.5”.[125]

1. The Applicant submitted that similar to clause 5.2 of the Diamond Valley Agreement, clause 4.1.3 of the Agreement does not provide for a fixed number of hours of work, certainty around the days of work nor the start and finishing time and it does not provide stability regarding benefits on a proportional basis.[126] The Applicant submitted that a part-time employee under the Agreement could also be characterised as a weekly analogue of daily casual employment.[127]

1. The Respondent submitted that the decision in AMIEU v Diamond Valley Pork Pty Ltd[128] is not analogous to the matter at hand which was determined based on the text of the Diamond Valley Agreement[129] and that the Agreement has different text which requires examination on its own merits.[130] In particular, the Respondent submitted that the decision in AMIEU v Diamond Valley Pork Pty Ltd[131] can be distinguished from this matter as:

• the Diamond Valley Agreement is substantially and materially different from the Agreement;

• neither the Meat Industry Award nor any other award has any application to this matter;

• the Agreement provides for a minimum of 20 hours for a part-time employee (see clause 4.1.3(a)) whereas the Diamond Valley Agreement provided no such guarantee;

• the term “weekly hire” part-time employee does not form part of the Agreement;

• the casual conversion clause does not replicate the clause in the Storage Services and Wholesale Award 2020 (Storage Award);

• under the Agreement notice of termination, the calculation of severance pay and the calculation of leave is resolved by the definitions for ‘day’ and ‘week’ for part-time employees with clause 1.2 of the Agreement providing that a ‘day’ is averaged over the employee's employment and a ‘week’ over their last year;

• the Diamond Valley Agreement provides that a part-time employee must be given a ‘specified number of hours each week’ and have a ‘pattern of work’ and neither of these prescriptions appear in the Agreement.[132]

1. I accept that the circumstances of the current matter can be distinguished from AMIEU v Diamond Valley Pork Pty Ltd,[133] for the reasons set out by the Respondent. The questions of whether the ‘roster’ can be changed and whether those hours worked outside the roster are to be treated as overtime need to be considered in the context of the Agreement’s own provisions.

1. While the matter is distinguishable from AMIEU v Diamond Valley Pork Pty Ltd[134] I note that the Full Bench considered the provisions of the Diamond Valley Agreement in the broader context of the established industrial conception of part-time employment.

1. In this regard the Applicant submitted that the decision of the Full Bench in 4 Yearly Review of Modern Awards – Casual and Part- time Employment[135] is relevant as it provides that:

·   there needs to be a distinction between part-time and casual employees;

·   this distinction needs to go beyond the provision of the benefits available to full-time employees on a pro rata basis;

·   part-time should provide a minimum number of weekly hours of work and regularity in the hours of work.[136]

1. The Applicant submitted that the Respondent’s approach provides no regularity to part-time employees and goes against the principles set out in the Full Bench’s decision in 4 Yearly Review of Modern Awards – Casual and Part- time Employment.[137]

1. In relation to the Applicant’s submissions the Respondent submitted:

• it is relevant that clause 1.3.3 of the Agreement excludes the operation of all awards and other industrial instruments;

• references by the Applicant to determinations by the Commission in relation to the general nature of part-time provisions which were sought to be inserted into modern awards, should be excluded from consideration in the interpretation of the Agreement.[138]

1. The Respondent submitted that the Full Bench’s decision in 4 Yearly Review of Modern Awards – Casual and Part- time Employment[139] has no bearing on this matter and the fact that the Full Bench detailed what part time clauses should reflect does not impact on what is actually written in the Agreement.[140]

1. The Respondent also rejected the Applicant’s submission that the Agreement needs to provide a distinction between casual and part time employment and that the Agreement lacks that distinction.[141] Rather, the Respondent submitted that the rigid characteristics of an award based part-time provision can be dispensed with by the parties in the context of a particular agreement and this is what has occurred in relation to the Agreement.[142]

1. The Full Bench in AMIEU v Diamond Valley Pork Pty Ltd considered the 4 Yearly Review of Modern Awards – Casual and Part-time Employment decision in which a five member Full Bench traced the history of part time employment and observed:

• part-time employee is usually conceived as involving all of the benefits of full-time employment paid on a pro-rata basis;[143]

• in the 1995 Personal Carer’s Leave Test Case – Stage 2[144] the Full Bench of the AIRC determined that certain additional matters needed to be taken into account in the development of “fair and equitable” part-time work provisions, including a clear distinction between part-time work and casual employment;

• the Full Bench in the 1995 Personal Carer’s Leave Test Case – Stage 2 also found that part-time work provisions should specify the minimum number of weekly hours to be worked and provide some regularity in the manner in which those hours are worked and stated:

“Regularity in relation to hours worked is an important feature of part-time employment. In the absence of such regularity reduced hours of work may not be conducive to reconciling work and family responsibilities. For example, if hours of work are subject to change at short notice it can create problems for organising child care as these arrangements generally require stable hours and predictable timing…”[145]

• the typically distinctive features of the award regulation of part-time work, including requirements for written agreement specifying the number of hours to be worked and the days and times in the week when the hours are to be worked, alterable by written agreement only, reflect the original rationale for part-time employment as referred to earlier in the Full Bench decision.[146] In particular, the Full Bench observed that part-time employment has been treated as peculiarly suitable for those with major family or other personal commitments in their lives, and award provisions have not been constructed simply to allow any person to be employed on any number of hours below full time hours.[147]

1. Drawing on the observations of the Full Bench in the Casual employment and Part-time employment decision,[148] the Full Bench in AMIEU v Diamond Valley Pork Pty Ltd,[149] summarised the usual features of part-time employment as including a fixed number of ordinary working hours per week, reasonable certainty as to the days upon which work is performed and the times upon which work starts and finishes, and the provision of benefits of full-time employment on a pro-rata basis.[150] The Full Becnh observed that another feature of part-time employment is that it continues indefinitely subject to termination on a prescribed period of notice.[151]

1. In considering the Diamond Valley Agreement’s provisions in the context of the established industrial conception of part-time employment, the Full Bench found that the Deputy President’s findings at first instance established “a putative novel form of employment that bears little relationship to the established industrial conception of part-time employment”[152] in that it:

• was not permanent (i.e. continuing indefinitely subject to termination on a prescribed period of notice);

• did not involve any fixed number of hours per week;

• did not involve any certainty as to days upon which work is performed or as to starting and finishing times; and

• did not involve the pro-rata provision of benefits of full-time employment (because there was no fixed number of hours of work allowing for the stable provision of such benefits on a proportional basis).[153]

1. The words of an enterprise agreement are not to be interpreted in a vacuum divorced from industrial realities[154] and it is also appropriate in the current matter to consider the proper interpretation of the Agreement in the context of the established industrial conception of part-time employment.

1. Turning back to the Agreement’s provisions, clause 4.3.2 deals with roster changes and provides:

“4.3.2 Roster Changes – Full time employees

Any permanent roster change must be provided to the employee in writing with a minimum of seven (7) days’ notice, provided that an employee's roster may be changed by mutual agreement at any time.”

1. As the clause title suggests and as is acknowledged by the Respondent, clause 4.3.2 does not apply to part-time employees.[155]

1. Clause 4.3.3 is not limited to particular employees in its application and provides:

“4.3.3 Rosters - variation to start and or finish time

The Employer may require an Employee to vary their start and or finish time with forty eight (48) hours' notice. Where the Employer varies the start and or finish time for peak periods it will provide seven (7) days' notice. Provided that the Employer and an Employee may agree to a lesser or no period of notice to alter an Employee’s start and or finish time”.

1. Notwithstanding the above, clause 4.1.3(e) applying to part time employees requires seven (7) days notice to change starting times (or any other time by agreement between the parties) for a part-time employee.

1. As noted by the Respondent, logically, the only way in which ordinary hours of work can be changed in accordance with the permission under clause 4.1.3(e) is to change the ordinary hours that may be in force as between the parties.[156] Those ordinary hours are in force by virtue of the obligation in clause 4.3.1 to provide a roster.

Part-time employees working outside their rostered start and finish times

1. It is apparent that from time to time employees will be asked to start earlier than the rostered start time for their shift or work after their shift’s rostered finishing time with the consequence that they work a number of hours in excess of those hours that they would normally work.

1. In particular Mr Cao’s evidence was that sometimes his manager would:

• offer extra hours on the days he works;[176]

• call him in to start early.[177]

1. Mr Cao said that he thought he would be paid overtime rates for the extra time worked and at no time was it indicated to him that this time would be paid at his ordinary rates.[178]

1. Mr Bartle’s evidence was that:

• when he was offered a permanent position with the Respondent he understood that he ‘would get a minimum of 30 hours of work per week with the opportunity to flex hours and overtime’;[179]

• he holds the understanding that the Respondent can change his ‘work hours by agreement with 7 days’ notice’;[180]

• occasionally his manager asks him to work back and he agrees;[181]

• he expected to be paid at overtime for the additional hours but was not and when he asked about this was told that he doesn’t get overtime until he completes 38 hours of work per week.[182]

1. Mr Smith’s evidence was that:

• occasionally his manager would ask if he wanted to stay back on the day;[183]

• sometimes he would be asked if he wanted to stay back the day before but this was not often;[184]

• when he was asked to work back, it was not explained to him that this would be at his ordinary rate of pay.[185]

1. The evidence of Mr Parkhill and Mr Tongamoa was that:

• when they offer extra work to a part-time employee they can reject the offer and many do;

• they have never compelled a part-time employee to work extra hours; and

• as a matter of practice the Respondent does not require a part-time employee to work extra hours in addition to their base roster.[186]

1. As I have earlier found in relation to a part-time employee, the Respondent may change starting and finishing times within the roster upon provision of the requisite notice period as set out in clauses 4.3.3 or 4.1.3. In particular, clause 4.3.3 requires 48 hours’ notice if the Respondent requires an employee to vary their start and/or finishing times or 7 day’s notice for peak periods. Clause 4.1.3 requires the Respondent to provide a part-time employee with seven (7) days notice to change starting times (or any other time by agreement between the parties) and does not distinguish between peak and non-peak periods in relation to this notice period.

1. However there are no other provisions that give the Respondent an ability to make other changes to the roster, including the days on which the employee is rostered to work or the number of rostered hours.

1. The evidence before the Commission suggests that a Team Manger will make an assessment as to whether they need an employee to stay back or start early, a conversation or text message exchange would be had with an employee about that and the employee would either agree to stay back or would say they could not in which case they would not be compelled to work the extra hours.  The evidence suggests that employees were not aware, at least initially, that the Respondent would not pay them overtime in respect of additional hours worked before or after a shift.

1. In the case of the Respondent asking an employee to stay back or come in early, this is a requirement of the Respondent after having identified a need for an employee to work hours that sit outside the employee’s roster. The act of the Respondent in seeking an employee’s confirmation that they are able to work the additional hours and providing a right of refusal does not in itself mean that the employee has agreed to change their ordinary hours as reflected in their roster (although it may result in an employee agreeing to waive or reduce the 7 day notice period as set out in clause 4.1.3 regarding a change to starting time, depending on the nature of the conversation). Indeed, agreement to work overtime is in fact expressly contemplated in some contexts under the Agreement.[187]

1. In summary, absent agreement to change ordinary hours of work, time worked outside of the rostered hours (other than the changes that the Respondent is permitted to make pursuant to clauses 4.3.3. and 4.1.3) will be ‘time worked in excess of the ordinary working hours of the Agreement’ and shall be deemed overtime and paid at overtime rates in accordance with clause 4.2. Again, if the Respondent is seeking to characterise its offer of additional hours as an offer to vary ordinary hours of work, it would need to clarify this so that employees could decide whether they agree. Whether they have done so on each instance of offering an employee additional hours and whether that offer was accepted by the employee will be a question of fact.

The Casual Issue

1. Clause 4.2.8 of the Agreement provides:

“4.2.8     Overtime preference

Full time and part time Employees will be given preference over casuals (including an indirectly engaged labour hire casual), to work an additional overtime shift on one of their non-rostered days per week.”

1. As noted above, the question the parties are seeking that the Commission determine is whether clause 4.2.8 requires the Respondent to provide full-time and part-time employees with an additional shift to work as overtime on one of their non-rostered days per week over engaging a casual employee on ordinary time.

Submissions of the parties

1. The Applicant submitted that clause 4.2.8 can be split into two elements:

• the first element being that “Full time and part time Employees will be given preference over casuals (including an indirectly engaged labour hire casual)” meaning, unambiguously, that full-time and part-time employees will be given preference over casual workers to provide labour;[188] and

• the second element being “to work an additional overtime shift on one of their non-rostered days per week” meaning, without ambiguity, that full-time and part-time employees are to be provided with an option to work one shift per week on one of their non-rostered days off.[189]

1. The Applicant submitted that:

• combining the two elements provides that before a casual worker is engaged, full time and part-time employees have an option to work overtime on one of their non rostered days as an additional shift per week;[190]

• the words are specific and not bound by the premise that the shift on offer must be an overtime shift or that a casual worker is rostered to work ordinary time;[191]

• the obligation for the Respondent is to determine if a full-time and or part-time employee would like to work on one of their non rostered days before rostering a casual worker.[192]

1. The Respondent noted that the AMIEU’s submission attaches the ‘non-rostered day’ to a permanent employee only and submitted the clause is not structured in the manner contended by the AMIEU but applies to both permanent and casual employees.[193]

1. The Respondent submitted that:

• clause 4.2.8 allocates available overtime shifts and where an overtime shift is available then a permanent employee will have preference over a casual;

• if a casual is engaged to work a non-overtime shift for that employee, the clause does not apply.[194]

1. The Respondent submitted that clause A1.2(d) of Appendix 1 (Foundation Principles for Overtime) provides further prescriptions on the same matter providing that:

“A casual Employee (including an indirectly engaged labour hire casual), can be used to work overtime by the Employer in circumstances where:

i.No permanent employees volunteers to work overtime or have exceed the total hour limitations in this clause;

ii.To cover for unplanned leave e.g. absenteeism etc.”[195]

Consideration

1. As noted earlier in this decision the starting point in considering the proper interpretation of the Agreement is to consider is the ordinary meaning of the words, read as a whole and in context.

1. I agree with the Applicant that clause 4.2.8 can be split into two components. The first of these is the statement that “Full time and part time Employees will be given preference over casuals (including an indirectly engaged labour hire casual)” (underlining added). The plain meaning of these words is obvious – part-time and full-time employees will be given preference or favoured over casuals in respect of something.

1. The next element of the clause deals with what that ‘something’ is, being a preference to ‘work an additional overtime shift on one of their non-rostered days per week’ (underlining added).

1. To understand how this clause was intended to operate, the clause should be considered in the context of the principles governing overtime as can be found at clause A1 of Appendix 1 of the Agreement. Among these principles are the following:

• Clause A1.1(e) of Appendix 1 provides that “Overtime can never be an absolute right or entitlement of any employee in any workplace for the reason that overtime can only arise when the business needs it.”

• Clause A1.2(i) of Appendix 1 provides that “An employee who volunteers for an overtime shift and then fail (sic) to show up for two (2) overtime shifts in a four (4) week period, will be prevented from working overtime for fourteen (14) days…”

1. Such clauses contemplate that employees may have a desire to work overtime, with the prevention from working overtime being a punitive measure in the event of an employee failing to show up for shifts.

1. Consistent with this, clause A1 of Appendix 1 sets out a process in which an employee can volunteer to work overtime with clause A1.2(e) providing “Employees seek (sic) to volunteer to work overtime must write their name in the overtime book by 12.00 pm the day prior”. If the shift the full-time and part-time employees have volunteered to work is on one of their non-rostered days per week, it would be an ’overtime’ shift as described in clause 4.2.8.

1. Where employees volunteer to take on an overtime shift, clause A1 sets out some rules that would apply in the allocation of overtime. In particular, clause A1 seeks to place some limitations on the hours that an employee can be rostered to work as:

• clause A1.2(a) provides, in relation to a five-day roster employee, that an employee must have a day off per week and will not work more than six shifts per week;

• clause A1.2(b) provides, in relation to a five-day roster employee, that an employee can work up to a maximum of twelve paid hours a day and up to sixty-three paid hours a week;

• clause A1.3(a) provides, in relation to a seven day roster employee, that an employee can work up to a maximum of six shifts per week (inclusive of leave);

• clause A1.3(b) provides, in relation to a seven day roster employee, that an employee must have one of their two rostered days off as a rest day provided they have the ability to work seven shifts of overtime in a six week cycle (where overtime is available);

• clause A1.3(c) provides, in relation to a seven-day roster employee, that an employee can work up to a maximum of twelve paid hours a day.

1. Once the parameters in clause A1 are applied and it is clear who is eligible to work overtime, to the extent that full-time and part-time employees have volunteered to work an overtime shift (which would be ‘one of their non-rostered days per week’), clause 4.2.8 makes clear that they are to receive preferential treatment in the allocation of those shifts, over engagement of casuals to work those shifts. 

1. This construction is complementary to clause A1.2(d)(i) which provides that a casual employee (including an indirectly engaged labour hire employee) can be used to work overtime where no permanent employees volunteer to work overtime or have exceeded the total hours limitations (as referred to above).

1. Clause A1.2(d)(ii) deals with a circumstance in which engagement of a casual employee is permitted outside the volunteer process set out in clause A1.2(e), being to cover for unplanned absenteeism.

1. The question the parties have asked the Commission to answer is:

“Does clause 4.2.8 provide that the employer must provide full-time and part-time employees with an additional shift to work as overtime on one of their non-rostered days per week over engaging a casual employee on ordinary time (Casual Issue)?”

1. In summary, the answer is that when full-time and part-time employees have volunteered to work an additional overtime shift on one of their non-rostered days, that shift would need to be offered to them by the Respondent, subject to the principles governing overtime allocation in Appendix 1, before the Respondent could engage a casual to work that shift.

COMMISSIONER

Appearances:

Mr J Schultz on behalf of the AMIEU.
Mr D D’Arcy on behalf of Americold Logistics Limited.

Hearing details:

2023.
Sydney
November 2.

[1] Respondent’s Outline of Submissions dated 23 October 2023 at [11].

[2] Respondent’s Outline of Submissions dated 23 October 2023 at [11].

[3] Respondent’s Outline of Submissions dated 23 October 2023 at [12].

[4] Respondent’s Outline of Submissions dated 23 October 2023 at [10].

[5] Respondent’s Outline of Submissions dated 23 October 2023 at [10].

[6] Affidavit of Steven Holliday dated 23 October 2023 at [3].

[7] Affidavit of Steven Holliday dated 23 October 2023 at [5].

[8] Affidavit of Steven Holliday dated 23 October 2023 at [6].

[9] Applicant’s Outline of Submissions filed 4 October 2023 at [13].

[10] Statement of Troy Weyland dated 2 October 2023 at [6], Statement of Jamie Cao dated 2 October 2023 at [6], Statement of Lachlan Bartle dated 2 October 2023 at [6].

[11] Applicant’s Outline of Submissions filed 4 October 2023 at [21].

[12] Respondent’s Outline of Submissions filed 23 October 2023 at [21] – [22].

[13] Respondent’s Outline of Submissions filed 23 October 2023 at [22].

[14] Affidavit of Steven Holliday dated 23 October 2023, SH1.

[15] Respondent’s Outline of Submissions filed 23 October 2023 at [23].

[16] Respondent’s Outline of Submissions filed 23 October 2023 at [23].

[17] Respondent’s Outline of Submissions filed 23 October 2023 at [23].

[18] Applicant’s Outline of Submissions filed 4 October 2023 at [14].

[19] Applicant’s Outline of Submissions filed 4 October 2023 at [14].

[20] Statement of Troy Weyland dated 2 October 2023, TW1.

[21] Statement of Troy Weyland dated 2 October 2023, TW1.

[22] Statement of Troy Weyland dated 2 October 2023, TW1.

[23] Respondent’s Outline of Submissions filed 23 October 2023 at [23].

[24] Statement of Troy Weyland dated 2 October 2023 at [8], Statement of David Smith dated 2 October 2023 at [8], Statement of Jamie Cao dated 2 October 2023 at [9], Statement of Lachlan Bartle dated 2 October 2023 at [10].

[25] Statement of Troy Weyland dated 2 October 2023 at [8], Statement of David Smith dated 2 October 2023 at [8], Statement of Jamie Cao dated 2 October 2023 at [9], Statement of Lachlan Bartle dated 2 October 2023 at [10].

[26] Statement of Troy Weyland dated 2 October 2023 at [10].

[27] Statement of Troy Weyland dated 2 October 2023 at [10].

[28] Statement of Troy Weyland dated 2 October 2023 at [11].

[29] Statement of Troy Weyland dated 2 October 2023 at [12].

[30] Further Statement of Troy Weyland dated 30 October 2023 at [5].

[31] Statement of Jamie Cao dated 2 October 2023 at [12].

[32] Statement of Jamie Cao dated 2 October 2023 at [13].

[33] Statement of Jamie Cao dated 2 October 2023 at [14].

[34] Statement of Jamie Cao dated 2 October 2023 at [15].

[35] Statement of Jamie Cao dated 2 October 2023 at [16].

[36] Statement of David Smith dated 2 October 2023 at [10].

[37] Statement of David Smith dated 2 October 2023 at [10].

[38] Statement of David Smith dated 2 October 2023 at [10].

[39] Statement of David Smith dated 2 October 2023 at [11].

[40] Statement of David Smith dated 2 October 2023 at [13].

[41] Statement of David Smith dated 2 October 2023 at [14].

[42] Statement of Troy Weyland dated 2 October 2023, DS3.

[43] Statement of Lachlan Bartle dated 2 October 2023 at [7].

[44] Statement of Lachlan Bartle dated 2 October 2023 at [8].

[45] Statement of Lachlan Bartle dated 2 October 2023 at [9].

[46] Statement of Lachlan Bartle dated 2 October 2023 at [11].

[47] Statement of Lachlan Bartle dated 2 October 2023 at [11].

[48] Statement of Lachlan Bartle dated 2 October 2023 at [10].

[49] Affidavit of Steven Holliday dated 23 October 2023 at [10].

[50] Affidavit of Glenn Parkhill dated 23 October 2023 at [4], and Affidavit of Hobson Tongamoa dated 23 October 2023 at [4].

[51] Affidavit of Glenn Parkhill dated 23 October 2023 at [4].

[52] Affidavit of Glenn Parkhill dated 23 October 2023 at [4].

[53] Affidavit of Steven Holliday dated 23 October 2023 at [9].

[54] Affidavit of Steven Holliday dated 23 October 2023 at [9].

[55] Respondent’s Outline of Submissions filed 23 October 2023 at [24].

[56] Respondent’s Outline of Submissions filed 23 October 2023 at [25], see also Affidavit of Glenn Parkhill dated 23 October 2023 at [5] and Affidavit of Hobson Tongamoa dated 23 October 2023 at [5].

[57] Respondent’s Outline of Submissions filed 23 October 2023 at [26], see also Affidavit of Glenn Parkhill dated 23 October 2023 at [5] and Affidavit of Hobson Tongamoa dated 23 October 2023 at [5].

[58] Respondent’s Outline of Submissions filed 23 October 2023 at [27].

[59] Respondent’s Outline of Submissions filed 23 October 2023 at [27].

[60] Affidavit of Glenn Parkhill dated 23 October 2023 at [6] and Affidavit of Hobson Tongamoa dated 23 October 2023 at [6].

[61] Affidavit of Glenn Parkhill dated 23 October 2023 at [7] and Affidavit of Hobson Tongamoa dated 23 October 2023 at [7].

[62] Respondent’s Outline of Submissions filed 23 October 2023 at [28].

[63] Applicant’s Outline of Submissions filed 4 October 2023 at [24].

[64] Applicant’s Outline of Submissions filed 4 October 2023 at [24].

[65] Applicant’s Outline of Submissions filed 4 October 2023 at [35].

[66] Applicant’s Outline of Submissions filed 4 October 2023 at [55].

[67] Applicant’s Outline of Submissions filed 4 October 2023 at [48].

[68] Applicant’s Outline of Submissions filed 4 October 2023 at [58].

[69] Applicant’s Outline of Submissions filed 4 October 2023 at [49].

[70] Respondent’s Outline of Submissions filed 23 October 2023 at [3].

[71] Respondent’s Outline of Submissions filed 23 October 2023 at [7] – [9].

[72] Respondent’s Outline of Submissions filed 23 October 2023 at [9] – [10].

[73] Respondent’s Outline of Submissions filed 23 October 2023 at [11].

[74] Respondent’s Outline of Submissions filed 23 October 2023 at [12].

[75] Respondent’s Outline of Submissions filed 23 October 2023 at [12].

[76] Respondent’s Outline of Submissions filed 23 October 2023 at [12].

[77] Respondent’s Outline of Submissions filed 23 October 2023 at [13].

[78] Respondent’s Outline of Submissions filed 23 October 2023 at [15].

[79] Respondent’s Outline of Submissions filed 23 October 2023 at [16].

[80] Respondent’s Outline of Submissions filed 23 October 2023 at [17].

[81] Respondent’s Outline of Submissions filed 23 October 2023 at [18].

[82] Respondent’s Outline of Submissions filed 23 October 2023 at [19].

[83] Respondent’s Outline of Submissions filed 23 October 2023 at [20].

[84] Respondent’s Outline of Submissions filed 23 October 2023 at [40].

[85] Respondent’s Outline of Submissions filed 23 October 2023 at [41] with reference to Applicant’s Outline of Submissions filed 4 October 2023 at [47].

[86] Respondent’s Outline of Submissions filed 23 October 2023 at [41].

[87] Respondent’s Outline of Submissions filed 23 October 2023 at [41].

[88] Respondent’s Outline of Submissions filed 23 October 2023 at [41].

[89] [2023] FWC 240.

[90] Applicant’s Outline of Submissions filed 4 October 2023 at [52].

[91] [2023] FWC 240.

[92] [2023] FWC 240.

[93] Applicant’s Outline of Submissions filed 4 October 2023 at [54] –[55].

[94] [2023] FWC 240.

[95] Respondent’s Outline of Submissions filed 23 October 2023 at [43].

[96] Applicant’s Outline of Submissions filed 4 October 2023 at [52].

[97] Respondent’s Outline of Submissions filed 23 October 2023 at [44].

[98] Respondent’s Outline of Submissions filed 23 October 2023 at [45].

[99] [2017] FWCFB 3005.

[100] Ibid, [114].

[101] [2020] FCAFC 123.

[102] Ibid, [65].

[103] [2018] FCAFC 131, 264 FCR 536.

[104] Applicant’s Outline of Submissions filed 4 October 2023 at [29].

[105] Respondent’s Outline of Submissions filed 23 October 2023 at [30].

[106] [2023] FWCA 382.

[107] Respondent’s Outline of Submissions filed 23 October 2023 at [24].

[108] [2021] FWCFB 532.

[109] [2020] FWC 5286.

[110] [2021] FWCFB 532 at [1].

[111] [2021] FWCFB 532.

[112] [2021] FWCFB 532 at [32].

[113] [2021] FWCFB 532 at [33].

[114] [2021] FWCFB 532 at [35].

[115] [2021] FWCFB 532 at [36].

[116]  [2021] FWCFB 532 at [37].

[117] [2021] FWCFB 532 at [38].

[118] [2021] FWCFB 532 at [39].

[119] [2021] FWCFB 532 at [40].

[120] [2021] FWCFB 532 at [41].

[121] [2021] FWCFB 532 at [41].

[122] [2021] FWCFB 532 at [54].

[123] [2021] FWCFB 532 at [55].

[124] Respondent’s Outline of Submissions filed 23 October 2023 at [34] with reference to [2021] FWCFB 532 at [58].

[125] Respondent’s Outline of Submissions filed 23 October 2023 at [34] with reference to [2021] FWCFB 532 at [60[.

[126] Applicant’s Outline of Submissions filed 4 October 2023 at [45].

[127] Applicant’s Outline of Submissions filed 4 October 2023 at [46].

[128] [2021] FWCFB 532.

[129] Respondent’s Outline of Submissions filed 23 October 2023 at [34].

[130] Respondent’s Outline of Submissions filed 23 October 2023 at [36].

[131] [2021] FWCFB 532.

[132] Respondent’s Outline of Submissions filed 23 October 2023 at [35].

[133] [2021] FWCFB 532.

[134] [2021] FWCFB 532.

[135] [2017] FWCFB 3541 at [93].

[136] Applicant’s Outline of Submissions filed 4 October 2023 at [38].

[137] Applicant’s Outline of Submissions filed 4 October 2023 at [60] – [65], [2017] FWCFB 3541.

[138] Respondent’s Outline of Submissions filed 23 October 2023 at [2].

[139] Applicant’s Outline of Submissions filed 4 October 2023 at [60] – [65], [2017] FWCFB 3541.

[140] Respondent’s Outline of Submissions filed 23 October 2023 at [38].

[141] Respondent’s Outline of Submissions filed 23 October 2023 at [38].

[142] Respondent’s Outline of Submissions filed 23 October 2023 at [38].

[143] [2017] FWCFB 3541 at [86].

[144] (1995) 62 IR 48 at p.72.

[145] [2017] FWCFB 3541 at [93].

[146] [2017] FWCFB 3541 at [97].

[147] [2017] FWCFB 3541 at [97].

[148] [2017] FWCFB 3541 at [86] – [97].

[149] [2021] FWCFB 532.

[150] [2021] FWCFB 532 at [32].

[151] [2021] FWCFB 532 at [32].

[152] [2021] FWCFB 532 at [32].

[153] [2021] FWCFB 532 at [33].

[154] [2108] FCAFC 131, 264 FCR 536.

[155] Respondent’s Outline of Submissions filed 23 October 2023 at [19].

[156] Respondent’s Outline of Submissions filed 23 October 2023 at [15].

[157] [2021] FWCFB 532.

[158] [2021] FWCFB 532 at [55].

[159] [2014] FWCFB 12.

[160] [2014] FWCFB 12 at [19].

[161] [2014] FWCFB 12 at [20].

[162] [2014] FWCFB 12.

[163] [2018] FWCFB 3610.

[164] [2021] FWCFB 532 at [34].

[165] [2018] FWCFB 3610.

[166] Respondent’s Outline of Submissions filed 23 October 2023 at [23].

[167] [2014] FWCFB 12.

[168] Respondent’s Outline of Submissions dated 23 October 2023 at [10].

[169] Respondent’s Outline of Submissions dated 23 October 2023 at [10].

[170] Statement of Troy Weyland dated 2 October 2023, TW1, Statement of Jamie Cao dated 2 October 2023.

[171] Affidavit of Glenn Parkhill dated 23 October 2023 at [7] and Affidavit of Hobson Tongamoa dated 23 October 2023 at [7].

[172] Statement of Troy Weyland dated 2 October 2023, DS3.

[173] Further Statement of Troy Weyland dated 30 October 2023 at [5].

[174] Affidavit of Glenn Parkhill dated 23 October 2023 at [4].

[175] Affidavit of Glenn Parkhill dated 23 October 2023 at [7] and Affidavit of Hobson Tongamoa dated 23 October 2023 at [7].

[176] Statement of Jamie Cao dated 2 October 2023 at [12].

[177] Statement of Jamie Cao dated 2 October 2023 at [13].

[178] Statement of Jamie Cao dated 2 October 2023 at [14].

[179] Statement of Lachlan Bartle dated 2 October 2023 at [7].

[180] Statement of Lachlan Bartle dated 2 October 2023 at [9].

[181] Statement of Lachlan Bartle dated 2 October 2023 at [11].

[182] Statement of Lachlan Bartle dated 2 October 2023 at [11].

[183] Statement of David Smith dated 2 October 2023 at [10].

[184] Statement of David Smith dated 2 October 2023 at [10].

[185] Statement of David Smith dated 2 October 2023 at [10].

[186] Affidavit of Glenn Parkhill dated 23 October 2023 at [6] and Affidavit of Hobson Tongamoa dated 23 October 2023 at [6].

[187] See clause A1.2(c) of Appendix 1 in relation to five-day roster employees.

[188] Applicant’s Outline of Submissions filed 4 October 2023 at [72] – [74].

[189] Applicant’s Outline of Submissions filed 4 October 2023 at [75].- [76].

[190] Applicant’s Outline of Submissions filed 4 October 2023 at [77].

[191] Applicant’s Outline of Submissions filed 4 October 2023 at [78].

[192] Applicant’s Outline of Submissions filed 4 October 2023 at [79].

[193] Respondent’s Outline of Submissions dated 23 October 2023 at [48].

[194] Respondent’s Outline of Submissions dated 23 October 2023 at [48].

[195] Respondent’s Outline of Submissions dated 23 October 2023 at [49].

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