Australasian Meat Industry Employees Union v Harvey Industries Group Pty Ltd
[2012] FWA 7183
•20 NOVEMBER 2012
[2012] FWA 7183 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australasian Meat Industry Employees Union
v
Harvey Industries Group Pty Ltd
(C2012/3554)
COMMISSIONER CLOGHAN | PERTH, 20 NOVEMBER 2012 |
Matters in alleged dispute relate to rostering and public holidays.
[1] This is an application by the Australasian Meat Industry Employees Union (“the Applicant” or “AMIEU”) seeking the payment of overtime for the fourth rostered day of work (Friday) in a week when a public holiday has occurred on a Monday to Thursday inclusive.
PROCEDURAL BACKGROUND
[2] On 26 April 2012, the AMIEU made application to Fair Work Australia (FWA) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP).
[3] The AMIEU, on behalf of its members, is in dispute with Harvey Industries Group Pty Ltd (“the Employer”).
[4] The application is made in accordance with s.739 of the Fair Work Act 2009 (“the FW Act”).
[5] The DSP is contained in clause 12. Dispute Settlement of the Harvey Industries Group Pty Ltd Meat Processing & By-Products Union Enterprise Agreement 2011 (“the 2011 Agreement”).
[6] The application was the subject of a conciliation conference on 21 May 2012 with Commissioner Steel in Adelaide.
[7] The application was referred to me for arbitration in Western Australia on 1 June 2012.
[8] The AMIEU seek a determination from the Tribunal in the following terms.
“That public holidays must be taken into consideration as hours worked in a week where a public holiday falls. The public holiday shall be given the value of a full day’s work regardless of local arrangements for sharing of the holidays or rostering arrangements or alterations to rostering arrangements. As such, when an additional day is required to be worked in the same week as the public holiday then such additional day shall be deemed to be in excess of the 38 ordinary hours and therefore overtime.”
[9] Procedural directions were issued on 26 June 2012.
[10] The hearing on 21 August 2012 was adjourned to 26 October 2012.
[11] At the hearing on 26 October 2012 in Bunbury, Western Australia, the Applicant was represented by Mr G Smith, Branch Secretary AMIEU SA & WA and evidence was given in support of the application by Mr J Da Silva, AMIEU Organiser and Mr Tai-Rakena, Boner at the Employer’s processing facility and Senior AMIEU Delegate.
[12] The Employer was represented by Ms A Casellas of counsel. Evidence was given, on behalf of the Employer by Mr Silberer, Chief Financial Officer.
[13] As part of the procedural directions, a significant amount of documentary material was incorporated into proceedings. After receiving the documentary material, submissions and hearing evidence, I reserved my determination. This is my decision and reasons for decision.
RELEVANT STATUTORY FRAMEWORK
[14] FWA is expressly authorised to deal with the dispute in accordance with sections 738 and 739 of the FW Act which are as follows:
Subdivision B—Dealing with disputes
738 Application of this Division
This Division applies if:
(a) ...; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) ...
(d) ...
739 Disputes dealt with by FWA
(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.
(2) ...
(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the dispute.
[15] The National Employment Standard (NES) relating to maximum weekly hours are set out at s.62 of the FW Act as follows:
Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full-time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) …
Determining whether additional hours are reasonable
(3) …
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee’s employer; or
(b) by or under a term or condition of the employee’s employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.
[16] The NES relating to public holidays is contained in Division 10 of Part 2-2 of the FW Act as follows:
Division 10—Public holidays
114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2) …
(3) …
(4) …
115 ...
116 Payment for absence on public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay forthe employee’s ordinary hours of work on the day or part-day.
Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.
RELEVANT PROVISIONS OF THE 2011 AGREEMENT
[17] Clause 12 sets out the Dispute Settlement Procedure:
12 DISPUTE SETTLEMENT
12.1 ...
12.2 In the event of a dispute arising in relation to a matter contained in this agreement the procedure to be followed is set out below:
12.2.1 ...
12.2.2 ...
12.2.3 ...
12.2.4 If the matter still cannot be resolved, it may be referred to Fair Work Australia for conciliation and/or determination.
12.3 ...
[18] The hours of work are set out in Clause 26 of the 2011 Agreement:
26 HOURS OF WORK
26.1 The ordinary hours of work are not to exceed 38 per week or an average of 38 per week not exceeding 152 in 28 days unless otherwise agreed.
26.2 ...
26.3 The ordinary hours of work may be worked on any day or all of the days of the week, Monday to Sunday.
26.4 ...
26.5 Any work performed outside the spread of hours is to be paid for at overtime rates...
26.6 ...
26.7 ...
26.8 ...
26.9 The employer shall post a roster showing the starting and finishing times for ordinary hours of work. This roster may be amended by the employer provided 36 hours notice is given. Starting and finishing time will be for a period of not less than one week in length. Notwithstanding the above, the employer shall have the right to change times at short notice to stagger starting times between the Slaughter Floor and Boning Room.
(my emphasis)
[19] Overtime in the Agreement is set out at Clause 27:
27 OVERTIME
27.1 All time worked outside the ordinary working hours (including shifts) on any day will be deemed to be overtime and will be paid for at time and one half for the first two hours and double time thereafter...
27.2 ...
27.3 ...
27.4 ...
27.5 Where an employee who is rostered off, volunteers to work an extra shift, such employee will be paid at the rate of ordinary time for the voluntary shifts allocated timeframe (e.g. 7.6 hours or 9.5 hours) provided that no person is permitted to volunteer under this clause where the performance of such work would result in the employee working more than six consecutive days. All time worked outside the employee’s normal shift hours (e.g. 7.6 hours or 9.5 hours) on a voluntary shift shall be deemed to be overtime and will be paid at the appropriate overtime rates.
(my emphasis)
[20] Public Holidays are set out at Clause 34 as follows:
34 PUBLIC HOLIDAYS
34.1 Employees, other than casuals who are not required to work on a public holiday, will be entitled to be paid the following Public holidays whether they be ordinarily rostered to work or ordinarily not rostered to work at the rate of 80% of their ordinary rate of pay.
Public Holiday | 2011 | 2012 | 2013 | 2014 |
New Year’s Day | - | 2 Jan 2012 | 1 Jan 2013 | 1 Jan 2014 |
Australia Day | - | 26 Jan 2012 | 28 Jan 2013 | 27 Jan 2014 |
Labour Day | - | 5 Mar 2012 | 4 Mar 2013 | 3 Mar 2014 |
Good Friday | - | 6 Apr 2012 | 29 Mar 2012 | 18 Apr 2014 |
Easter Monday | - | 9 Apr 2012 | 1 Apr 2013 | 20 Apr 2014 |
Anzac Day | - | 25 Apr 2012 | 25 Apr 2013 | 25 Apr 2014 |
Foundation Day | 6 Jun 2011 | 4 Jun 2012 | 3 Jun 2013 | - |
Sovereign’s Birthday | 28 Oct 2011 | 1 Oct 2012 | 30 Sep 2013 | - |
Christmas Day Holiday | 26 Dec 2011 | 25 Dec 2012 | 25 Dec 2013 | - |
Boxing Day Holiday | 27 Dec 2011 | 26 Dec 2012 | 26 Dec 2013 | - |
The public holidays shown above shall be effective on the dates shown and shall not be subject to movement other than in accordance with Clause 34.2 below.
34.2 ...
34.3 Payment for work on public holidays
34.3.1 ...
34.3.2 ...
34.3.3 ...
34.3.4 ...
34.3.5 Employees who ordinarily receive rostered days off shall not be required to take such rostered days off on a day which is to be observed as a public holiday.
34.4. ...
(my emphasis)
RELEVANT PROVISIONS OF THE HARVEY INDUSTRIES GROUP PTY LIMITED MEAT PROCESSING AND BY-PRODUCTS UNION COLLECTIVE AGREEMENT 2009 (“the 2009 Agreement”)
[21] For the purposes of this dispute, the only relevant provision referred to in this Decision is at subclause 33.3.5 which reads as follows:
“33.3.5 Employees who ordinarily receive rostered days off shall not be required to take such rostered days off on a day which is to be observed as a public holiday.
RELEVANT PROVISIONS OF THE MEAT INDUSTRY AWARD 2010 (“the Modern Award”)
[22] For the purposes of this dispute, the only relevant provision referred to in this Decision is at clause 31. Hours of Work and clause 34. Rostering as follows:
“31. Hours of Work
31.1 ...
31.2 ...
31.3 Methods of arranging ordinary working hours
(a) ...
(b) Matters upon which agreement may be reached include:
(i) ...
(ii) ...
(iii) ...
(iv) ...
(v) substitution of rostered day off;
(vi) accumulation of rostered days off;
(vii) arrangements which allow for flexibility in relation to the taking of rostered days off; and
(viii) arrangements of ordinary hours overall.
34. Rostering
34.1 ...
34.2 The employer must post a roster in the premises, showing the starting and finishing times for ordinary hours for employees.
34.3 This roster may be amended by the employer provided 36 hours’ notice is given.
34.4 ...”
RELEVANT BACKGROUND FACTS
[23] On 2 November 2011, FWA approved the 2011 Agreement. The Agreement covers all the Employer’s meat processing employees.
[24] The AMIEU was a bargaining representative during negotiations for the Agreement.
[25] The previous enterprise agreement, the 2009 Agreement, did not contain a term dealing with the changing of shift rosters.
[26] The AMIEU, as part of its log of claims for the 2011 Agreement, sought a term whereby any alterations to the prevailing shift roster required the Employer to give two weeks’ notice and the change in the roster pattern was not to be any longer than one month.
[27] The Employer did not agree to the AMIEU’s claim. Eventually, the parties agreed to the following being a term of the 2011 Agreement:
“26.9 The employer shall post a roster showing the starting and finishing times for ordinary hours of work. This roster may be amended by the employer provided 36 hours notice is given...”
[28] The provisions in subclause 26.9 of the 2011 Agreement are essentially taken from subclauses 34.2 and 34.3 of the Meat Industry Award 2010 (“the Modern Award”). Subclause 34.3 of the Modern Award reads:
“34.3 This roster may be amended by the employer provided 36 hours’ notice is given.”
[29] The rostering arrangements in place at the time of this dispute provided for employees to be rostered for four days at 9.5 hours each day (“four day roster”) and not required to attend work on a Friday.
[30] During peak production periods, the Employer employs additional employees and introduces a “five day roster” in which employees work a 9.5 hour day, and are not required to attend work for one (1) day on a rotational basis; that is to say, a meat worker will not work on a Monday one week, a Tuesday on the next week and so on.
[31] It should be noted that during peak production, an employee has the option of working their rostered day off. The additional day worked is paid for at ordinary rates. Consequently, an employee exercising this option, and working the additional day, works 47.5 hours at ordinary time during such weeks.
[32] At a meeting of the Employee Consultative Group (ECG) in February 2012, “management advised the workers that there was a need to work 4 days in any week that a public holiday falls” 1.
[33] Following the ECG meeting, Mr Tai-Rakena relayed to management that the employees believed that, in such circumstances, they should be paid overtime on the fourth rostered working day.
[34] On 29 February 2012, Mr Silberer provided Mr Da Silva legal advice. The legal advice states that, although the employees normally work ordinary hours [9.5 hours] between Monday and Thursday, the 2011 Agreement does not restrict the spread of ordinary hours to those days - provided 36 hours notice is given to employees 2.
[35] Mr Silberer, on 1 March 2012, advised Mr Smith, Branch Secretary, AMIEU that in the week commencing 5 March 2012 [Labour Day], all employees are required to work on Friday 9 March 2012, “and that they would be paid 38 ordinary hours for Tuesday to Friday plus they would be paid for the Monday public holiday [5 March 2012] 3.
[36] Mr Smith responded to Mr Silberer, “wouldn’t it be the case that they would then be rostered for more than 36 hours in the week given that public holidays have a value of 7.6 ordinary hours” 4.
[37] The above circumstances during the week commencing 5 March 2012 have essentially been repeated on the following days:
- 9 April 2012 - Easter Monday
- 25 April 2012 - ANZAC Day
- 4 June 2012 - Foundation Day
[38] In summary, for operational reasons, the Employer, in those weeks where a public holiday has fallen between Monday and Thursday inclusive, has changed the roster by giving 36 hours notice, to have employees rostered to work on the remaining four days. The AMIEU asserts that, on the fourth rostered day, overtime should be applied to hours worked. The Employer resists any claim that employees are entitled to overtime for the hours worked on the fourth rostered day of work.
[39] To resolve the dispute, the AMIEU and the Employer have agreed to the questions for determination. The questions distilled to their essence are as follows:
- Is the Employer prohibited by the Agreement from changing the employees’ roster to designate a public holiday which falls on a Monday to Thursday inclusive, to be the rostered day off in that week? and
- If the Employer can and does change the employees’ roster to designate the public holiday which falls on Monday to Thursday inclusive, to be the rostered day off, what is the payment for the fourth day worked in that particular week?
EVIDENCE
[40] The uncontested written evidence of Mr Da Silva is that:
- he was involved in the negotiations for the 2011 Agreement;
- the 2011 Agreement was largely a rollover of the 2009 Agreement;
- the 2011 Agreement provides for the maximum utilisation of the meat processing plant by arranging the hours of work to exceed 7.6 hours per day without payment of overtime;
- employees are not usually required to work on weekends and the roster is primarily Monday to Friday;
- the 2011 Agreement provides when required, for employees to work 47.5 hours Monday to Friday without the payment of overtime.
- The rostering arrangements at the meat processing plant were introduced some years ago following consultation and agreement on the site. They are as follows:
during peak production periods, four (4) shifts of 9.5 hours each week with one (1) day off. The rostered day varies each week, for example, in week one (1), if the employee is rostered off on a Monday, in week two (2), the employee would be rostered off on a Tuesday, and so on;
during non peak periods, the employees continue to work four (4) shifts at 9.5 hours but from Monday to Thursday each week;
during negotiations for the 2011 Agreement, Mr Silberer advised the Plant delegates and Mr Da Silva that the provision of 36 hours notice to change rosters would be used on two occasions during the year, firstly, when going from a fixed four (4) day week to five (5) days per week, and secondly, to revert to four (4) days per week;
rosters have been arranged to enable employees to complete normal production in four (4) days and have a rostered day. However, when a public holiday occurs, the employees do not get additional time off nor do they get overtime for completing normal production 5.
[41] Mr Da Silva’s uncontested oral evidence was that an employee, who is rostered off work on a particular day, and volunteers to work overtime on that day, is paid at ordinary rates. However, if an employee is compelled to work on their rostered day off, he or she is required to be paid at overtime rates 6.
[42] With respect to a public holiday falling on a Monday to Thursday inclusive, his interpretation of the 2011 Agreement was that on the fourth day of actual work, “the employees would have that option, you know, they can come in and work voluntarily or could be compelled to work on that day, which overtime rates would apply. In these instances, the employer can tell workers to come in and work on that fifth day” 7; and finally, “we never had an issue with public holidays in the past”8.
[43] Mr Tai-Rakena’s uncontested written evidence is that:
- since 2005 when he commenced employment, he had seen a number of rostering arrangements put in place;
- in approximately 2009, the Employer approached the employees to introduce a new roster which involved reducing the workforce and eliminating afternoon shift. The new roster involved working 9.5 hours without shift penalties or overtime. The employees would work four (4) days with a day off each week. The roster enabled a fixed day off on Friday during the “leaner” period and a floating day off during peak production;
- for the first few years of the roster, “if a public holiday fell during the week then it was simply observed when it fell, so that on a 4 day roster we would work three days in that week instead of four”;
- if employees worked on a Friday when working the four (4) day roster, “then overtime would be payable”;
- “under the 2009 Agreement we worked it so that whoever was rostered to work on a public holiday got the day off with 9.5 hours pay being a full day, but this caused many arguments so in the 2011 agreement we decided to give everyone the benefit of every public holiday and so we now get 7.6 hours pay for each holiday whether we are rostered on or off. This means that some people get less than 38 hours pay and others more than 38 but everyone gets all of the public holidays counted as a normal standard 7.6 hour day”; and
- “to the best of my knowledge this year [2012] is the first time the company has done this with public holidays where we work the Friday without getting overtime. The custom and practice in the past has always been that we get overtime for Fridays unless we volunteered for additional shifts at ordinary rates which is also part of the agreement” 9.
[44] For the Employer, Mr Silberer gave evidence as follows:
- he has been employed as Chief Financial Officer and Company Secretary since April 2010;
- he led the negotiations for the 2011 Agreement;
- he generally confirmed the rostering arrangements as given in evidence by Mr Da Silva and Mr Tai-Rakena;
- for the majority of the year, the processing plant operates on a four (4) day week Monday to Thursday;
- “while the four day roster is operating, Friday is not considered a rostered day off as employees have completed their 38 ordinary hours. It is classified as a non-production day and the plant does not operate on that day”;
- in relation to Mr Da Silva’s evidence that he had said changes to the rosters (with 36 hours notice) would only be used on two occasions, his evidence is that he “stated words to the effect that it was envisaged at the time that [changes to the roster] would be used twice a year to shift between the four day and five day rosters”. However, he did not give any assurances that it would only be used that way;
- “the issue with public holidays occurring between Monday to Thursday was not contemplated at the time of negotiations for the Agreement. This did not arise as an issue until February 2012”;
- in December 2011, HIG [Harvey Industries Group] entered into a supply arrangement with Coles supermarkets. In order to meet its obligations under the supply arrangement, HIG is required to process approximately 900 head of cattle per week;
- in February 2012, HIG became aware that where a public holiday occurred between Monday to Thursday, it reduced the four day roster to a three day roster. Accordingly, HIG would not be able to meet its production requirements to comply with its obligations under the Coles supply arrangement;
- HIG informed employees through the ECG in February 2012 that where a public holiday fell between Monday to Thursday, they would be required to work on a Friday to allow HIG to meet its production requirements under the Coles supply arrangement;
- employees asked to be paid overtime for that day, but HIG did not agree, as it was their belief that clause 26.3 (which states that ordinary hours may be worked on any day or all of the days of the week, Monday to Sunday) and subclause 26.9 of the 2011 Agreement gave HIG the flexibility to change starting and finishing times of rosters to meet operational requirements;
- despite what is stated in Mr Tai-Rakena’s witness statement, the day not worked in the four day roster, is not a rostered day off, as the meat processing plant does not operate on that day, and employees have worked 38 ordinary hours in that week. The Agreement does not provide for rostered days off;
- if HIG was required to pay employees overtime for the additional day worked in the weeks containing a public holiday, it would incur costs of approximately $40,000 for each additional day, amounting to $200,000 over a year;
- this additional cost would be a severe financial impost on HIG and is not economically viable.
[45] Having set out the essential elements of the evidence from both parties, I now turn to a consideration of that evidence, the FW Act, the 2011 Agreement and the respective submissions.
CONSIDERATION
[46] There is no dispute between the parties that the application has been properly made and that the Tribunal has the jurisdiction to deal with the dispute and make the orders sought in the application.
[47] Many of the facts relating to this application are not in dispute.
[48] Notwithstanding the dispute, I found all three witnesses gave their evidence, much of which was uncontested, in an honest and straightforward way.
[49] The material facts relating to the dispute are simply that the parties had negotiations for a new enterprise agreement. Part of those negotiations involved the giving of notice for a change in the roster; the parties agreed to 36 hours and this was reflected in the 2011 Agreement. However, the application and consequences of that term of the 2011 Agreement are the subject of this dispute.
[50] What is not in dispute is Mr Silberer’s evidence that “the situation of public holidays occurring between Monday to Thursday was not contemplated at the time of negotiations for the 2011 Agreement. This did not arise as an issue until February 2011” 10. The issue having arisen, the Employer gave 36 hours to change the employees’ roster to make the day the public holiday occurred the rostered day off instead of the Friday. This action, according to the uncontested evidence of Mr Tai-Rakena, who has worked at the processing plant since 2005, is contrary to the past practice. The past practice was to have the public holiday off on the day it fell, and either work a three day week or be paid overtime on the fourth day.
[51] There is no argument between the parties that the Employer must post a roster showing the starting and finishing times for ordinary hours of work. Further, that this roster can be amended by the giving of 36 hours notice.
[52] The Employer submits that the “words in the relevant classes of the Agreement should be interpreted literally and given their natural and ordinary meaning” 11.
[53] One of the relevant clauses is subclause 26.3 of the 2011 Agreement provides that ordinary hours can be worked Monday to Sunday. The Employer submits that where a public holiday falls on a Monday to Thursday, in accordance with the 36 hours notice provision in subclause 26.9 of the 2011 Agreement, it can amend the ordinary hours to exclude the day on which the public holiday occurs as ordinary hours of work. As a consequence of amending the roster to designate the Friday as ordinary hours, the employees, in accordance with subclause 27.1, are not entitled to overtime 12.
[54] If the above summary of the Employer’s position did not involve a public holiday, I suspect the AMIEU would have to agree with the interpretation of the 2011 Agreement. However, this dispute is not about the Employer’s right to amend the roster with 36 hours notice, it is about what occurs when the Employer exercises that right in a week when a public holiday falls on a Monday to Thursday inclusive.
[55] Prior to Labour Day on Monday 5 March 2011, the ordinary hours of work for employees were Monday to Thursday at 9.5 hours per day. The Employer has designated Labour Day a “non-production day” (I will deal with this nomenclature later in this decision) and in accordance with subclause 34.1 of the 2011 Agreement, employees, other than casuals, receive 80% of their rate of pay for that day. The 80% is equal to 7.6 hours. The payment is made to employees irrespective of whether “they be ordinarily rostered to work or not rostered to work”.
[56] There is no dispute between the parties that employees affected are entitled to, and did receive 7.6 hours for Labour Day. This arrangement was communicated to employees by Mr Silberer 13.
How is the deemed 7.6 hours on Labour Day to be treated?
[57] The Employer acknowledges that subsection 62(4) of the FW Act provides that authorised leave, such as hours ascribed to a public holiday, are included in the maximum weekly hours of 38 for full time employees in paragraph 62(1)(a) of the FW Act. However, the Employer submits that the legislative note to s.116 of the FW Act should take precedent. I am unable to agree with such a submission.
[58] Part 2-2 of the FW Act deals with the National Employment Standards (NES). The NES cannot be “displaced” and, in relation to the maximum weekly hours for full time employees, paragraph 62(1)(a) of the FW Act provides 38 ordinary hours of work in a week. Subsection 61(4) of the FW Act provides that the 38 ordinary hours includes authorised leave such as public holidays. Consequently, the plain and ordinary interpretation of paragraph 62(4) of the FW Act is that employees are entitled to have the benefit of the hours credited for a public holiday towards the maximum ordinary hours of work in a week.
[59] I now turn to the NES relating to public holidays.
[60] Subsection 114(1) of the FW Act provides that an employee is entitled to be absent from work on a public holiday. Section 116 of the FW Act provides where an employee is absent from his or her employment due to the public holiday, the employer is required to pay the employee for the employee’s ordinary hours of work on that day.
[61] Before addressing the Employer’s submission concerning the force and implication of the legislative footnote, it is necessary to examine what are the “ordinary hours” on a day on which a public holiday occurs.
[62] The 2011 Agreement provides that the ordinary hours of work are not to exceed 38 per week or 152 hours in a 28 day period. The evidence I received in proceedings relating to rosters was that the predominate daily ordinary hours are 5 x 7.6 hours per day or 4 x 9.5 hours per day for full time employees. Subclause 27.5 of the 2011 Agreement provides that:
“Where an employee who is rostered off, volunteers to work an extra shift, such employee will be paid at the rate of ordinary time for the voluntary shifts allocated timeframe (e.g. 7.6 hours or 9.5 hours) provided that no person is permitted to volunteer under this clause where the performance of such work would result in the employee working more than six consecutive days. All time worked outside the employee’s normal shift hours (e.g. 7.6 hours or 9.5 hours) on a voluntary shift shall be deemed to be overtime and will be paid at the appropriate overtime rates.” (my emphasis)
[63] Consequently, the “normal” shift hours are 7.6 hours or 9.5 hours.
[64] The legislative note commences with the words “If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section.”
[65] The word “ordinary” as defined by the Australian Concise Oxford Dictionary means “regular”, “normal”, “customary”, “not above the usual” and “commonplace”.
[66] With one variation in the slaughter floor, the predominant ordinary/normal hours of work for full time employees on any day are 7.6 hours or 9.5 hours. For this reason, I am unable to accept the argument that employees, who ordinarily work 9.5 hours on a Monday, which periodically is a public holiday, can have those 9.5 ordinary hours transferred to Friday and that this somehow meets the condition in the legislative note that they do not have “ordinary hours of work on a public holiday”.
[67] It is notable that the legal advice Mr Silberer refers to in his written evidence contains the statement:
“...although Harvey Beef employees normally work ordinary hours between Monday and Thursday...” 14.
[68] In summary, even if the legislative note to s.116 of the FW Act took precedence (which I disagree with) over s.62 of the FW Act, I find the legislative note is not applicable as the relevant employees receive 7.6 paid ordinary working hours on a public holiday. Those 7.6 ordinary hours paid form part of the ordinary hours on Labour Day and other public holidays cited in paragraph [19].
[69] I now turn to the relief sought by the AMIEU in the application; that the 7.6 hours attributed to Labour Day “be given the value of a full day’s work. As such, when an additional day is required to be worked in the same week as the public holiday then such additional day shall be deemed to be in excess of the 38 ordinary hours and therefore overtime”.
[70] Subclause 27.1 of the 2011 Agreement provides that time worked outside the ordinary working hours (including shifts) on any day will be deemed to be overtime and will be paid for at time and one half for the first two hours and double time thereafter.
[71] The AMIEU submit that on 5 March 2012 (Labour Day), the employees have been ascribed and paid for 7.6 ordinary hours. Consequently, approximately two (2) hours into the fourth shift on 9 March 2012, the employees have completed 38 ordinary hours and are entitled, pursuant to subclause 27.1 of the 2011 Agreement, to overtime until the end of their shift.
[72] However, I am not inclined to accept the interpretation in paragraph [71] because the NES, which cannot be displaced, provides at s.116 of the FW Act that “the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day...”. Accordingly, the employee should be paid for 9.5 hours, or if their ordinary hours are 7.6, they should receive 7.6 hours pay. Simply put, whatever are the regular or ordinary hours of employees at the time of the public holiday occurring, are, in accordance with s.116 of the FW Act, the hours which should be paid.
[73] Accordingly, this dispute has brought into focus whether subclause 34.1 of the 2011 Agreement is consistent with the NES at s.116 of the FW Act.
[74] Finally, although the Employer has a right to change the ordinary hours of work of employees with the giving of 36 hours notice, this general right is precluded by the express constraint in subclause 34.3.5 of the 2011 Agreement which states that:
“Employees who ordinarily receive rostered days off shall not be required to take such rostered days off on a day which is to be observed as a public holiday”.
[75] It may have been useful for the drafters of the 2011 Agreement to have drawn attention in the general provision on giving 36 hours notice to change the roster, to the specific exception to this permissible action in subclause.34.3.5.
[76] While Mr Silberer asserted that the 2011 Agreement does not provide for “rostered days off”, I specifically refer to subclause 34.3.5, which states that “employees who ordinarily receive rostered days off shall not be required to take such rostered days off on a day which is to be observed as a public holiday”. This provision was in the 2009 Agreement at subclause 33.3.5 and in the enabling provision of the Modern Award, at paragraphs 33.3(b)(iv to vii). Plainly, all three industrial instruments provide for employees to have rostered days off during their roster of ordinary hours and should be given its well understood meaning. There is no reference in the 2011 Agreement to “non production days”.
CONCLUSION
[77] In November 2011, FWA approved the 2011 Agreement. The Agreement gives the Employer the right, with 36 hours notice, to change the employees’ roster of ordinary hours.
[78] In February 2011, the Employer became aware that in those weeks where a public holiday falls on a Monday to Thursday, it would not be able to meet, in the remaining three (3) days, its obligations under the Coles supply arrangement. Accordingly, the Employer gave 36 hours notice to change the roster to have the day the public holiday fell upon to be designated the rostered day off and the employees required to work on a Friday as ordinary hours.
[79] The AMIEU seek a determination, among other matters, that the Friday should be paid as overtime.
[80] Having considered the provisions of the FW Act, the 2011 Agreement, evidence, and submissions and for the reasons outlined above, I make the following determination:
(1) the Employer, in accordance with the general provisions in subclause 26.9 of the 2011 Agreement, is able to, with 36 hours notice, amend the starting and finishing times of ordinary hours of work for employees;
(2) the general provision in subclause 26.9 of the 2011 Agreement is constrained by the specific inability of the Employer in subclause 34.3.5 of the 2011 Agreement to designate a public holiday as a rostered day off;
(3) pursuant to s.116 of the FW Act, employees are entitled to be absent from work and be paid for the ordinary hours which they would have normally worked on that day;
(4) pursuant to subsection 62(4) of the FW Act, the ordinary hours an employee would have normally worked on a public holiday are to be included as part of their 38 ordinary hours per week; and
(5) in those weeks where a public holiday falls on a Monday to Thursday and the Employer requires employees to work on a Friday, pursuant to subclause 27.1 of the 2011 Agreement, that day is deemed overtime and should be paid accordingly.
COMMISSIONER
Appearances:
G Smith for the Applicant.
A Casellas of counsel for the Respondent.
Hearing details:
2012:
Bunbury, WA
21 August.
26 October.
1 Exhibit A2
2 Exhibit A3 (3)
3 Exhibit A3 (4)
4 Exhibit A3 (5)
5 Exhibit A4
6 PN 42
7 PN 46
8 PN 47
9 Exhibit A5
10 Exhibit R4
11 Exhibit R1
12 Exhibit R1
13 Exhibit A3 (11)
14 Exhibit A3 (3)
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