Australian Institute of Marine and Power Engineers, The v Curtis Island Services Pty Ltd
[2015] FWCFB 6093
•9 SEPTEMBER 2015
| [2015] FWCFB 6093 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Curtis Island Services Pty Ltd; Maritime Union of Australia, The; Australian Maritime Officers’ Union, The
(C2015/726)
Maritime Union of Australia, The
v
Curtis Island Services Pty Ltd; Australian Maritime Officers’ Union, The; Australian Institute of Marine and Power Engineers, The
(C2015/743)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 9 SEPTEMBER 2015 |
Appeal against decision [[2015] FWC 1836] and Order [PR562130] of Commissioner Cambridge at Sydney on 20 March 2015 in matter numbers C2014/884, C2014/853 and C2014/863.
[1] This decision arises from an application by the Australian Institute of Marine and Power Engineers (AIMPE) in appeal matter number C2015/726. The respondents to this appeal are Curtis Island Services Pty Ltd (Curtis Island), the Maritime Union of Australia (MUA) and the Australian Maritime Officers Union (AMOU). In addition this decision arises from an application by the MUA in appeal matter number C2015/743. The respondents to this appeal are Curtis Island, AMOU and AIMPE. Both appellants seek permission to appeal and, if granted, an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) from a Decision 1 and Order2 of Commissioner Cambridge issued in Sydney on 20 March 2015.
[2] The appeal was heard in Sydney on 20 May 2015. Mr Nathan Keats, solicitor, of W.G. McNally Jones Staff, appeared with permission for the appellants. Mr Herbert of Counsel, with Ms Erin McCarthy, solicitor of Piper Alderman Lawyers, appeared with permission for Curtis Island.
[3] An appeal pursuant to s.604 may only proceed with the permission of the Fair Work Commission (Commission). Permission to appeal may be justified by appealable error, or other relevant considerations. The Commission must grant permission to appeal if it is in the public interest to do so. If permission to appeal is granted, an appeal proceeds before the Full Bench by way of rehearing. A Full Bench only exercises its powers on appeal if there is an appealable error identified at first instance.
[4] The decision under appeal arose from three dispute notifications lodged in accordance with the Dispute Settlement Procedure at Clause 9 of the Curtis Island Services Pty Ltd Enterprise Agreement 2014 (the Agreement). The three notifications were heard together by Commissioner Cambridge. The evidence on which the decision was based was agreed to comprise agreed paragraphs of a witness statement 3 provided by a Mr Kent dated 5 November 2014. Commissioner Cambridge summarised the background facts and the submissions of the MUA, AIMPE, AMOU and Curtis Island. We will not repeat those here. The issues to be resolved were identified by Commissioner Cambridge in paragraph 3 of his decision as follows:
“The primary question in dispute has involved a claim contained in each of the applications which asserted that employees who are recalled to work when they would otherwise not be rostered to work, have not been paid and/or credited entitlements arising under the Agreement. In addition, the application made by the AMOU included claims that; (a) employees were entitled to overtime payments when rostered work periods extended onto a day after a 21 day period; and (b) employees who were recalled to work when they would otherwise not be rostered to work were entitled to an accommodation allowance.”
[5] Clauses 12.16.5 and 22 of the Agreement are set out below:
“12.16.5Where a Full-time Permanent Employee on leave is recalled to work in as provided in the roster to cover a vacancy, the Employee shall be paid double time for the day(s) worked.
22 Leave
22.1 This clause operates in conjunction with the NES. The provisions of this clause are intended to satisfy the provisions in the NES concerning maximum weekly hours of work, annual leave and public holidays.
22.2 Full-time or part-time Employees shall be entitled to a period of leave at the rate of one (1) day's leave for each day of duty, such leave to be taken in lieu of five weeks annual leave, public holidays and weekends worked (while working the roster defined in clause 11.2, all Employees are deemed shiftworkers for the purposes of the NES) with the first 5 weeks of non-duty period in any 12 month period being deemed to have satisfied and Employees' entitlement to annual leave in accordance with the NES.
22.3 The giving and taking of leave shall be correlated with the operation of the vessel movements and operations.
22.4 The Employer and Employees shall work together to ensure leave balances are maintained at a reasonable level to alleviate staffing disruptions and additional resources.”
[6] The relevant employees work on an even time roster. Work is performed on 21 consecutive days followed by a 21 days absence from work. Employees are paid double time on any day on which they are recalled from a non-duty period. This was acknowledged by Curtis Island.
[7] Before Commissioner Cambridge all appellants submitted that an employee who worked on such an occasion was also entitled to accrue a day of leave for the day of leave he or she had forgone in returning to work. They argued that the Agreement did not permit leave to be cashed out for any leave day in the 21 day non duty period created by the even time roster. It was acknowledged that if this submission was correct it would result in a payment of triple time for a recall day.
[8] AIMPE and AMOU also argued that an additional day of annual leave was accrued. They acknowledged that if this submission was correct it would result in a payment of quadruple time for a recall day.
[9] AMOU also submitted that any worker who worked past midnight on the 21st day of the on duty roster period was entitled to an accommodation allowance and overtime for the hours worked past midnight because it is established that a day is defined as being from “midnight to midnight”.
[10] All union parties submitted that these outcomes were supported by the plain and ordinary meaning of the words of the Agreement.
[11] In relation to the claims common to all appellants Curtis Island submitted that context was very significant to the interpretation of clause 12.16.5 and clause 22 of the Agreement. All relevant employees had previously been engaged as casuals. Curtis Island’s deliberate move from a casual workforce to a permanent workforce was a significant issue underlining the negotiation of the Agreement, as was the fact that attendance at work in an otherwise off duty period is voluntary. In all of the circumstances surrounding the application of the Agreement, acceptance of work in what would normally be an off duty period could not be considered to be a recall to duty on a day of leave. It is not leave in the sense defined by the National Employment Standards and is therefore not preserved. Clause 22.2 of the Agreement provides for an off duty day for each day of duty. It does not provide for work on a recall day.
[12] Curtis Island submitted that there was no support in the plain ordinary words of the Agreement for the further claims of AMOU. There is no definition of a day in which it is defined as being comprised of the period from midnight to midnight and, in any event, that definition would be an impractical and unlikely outcome given that the construct of the Agreement involves 21 shifts of 12 hours duration with variable start and finish times. In addition Curtis Island submitted that clause 38.2 did not specify an accommodation allowance except for periods when an employee was on duty.
[13] Commissioner Cambridge considered the application of these clauses in context. We are satisfied that he did so by properly applying the reasoning of the most recent authority regarding the interpretation of the terms of an enterprise agreement in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd (Golden Cockerel). 4 He concluded:
“[56] The determination of the issues which have arisen in these disputes has involved the interpretation of particular words in various clauses of the Agreement. In particular, the words contained in clauses 12.16.5 and 22 of the Agreement, should be interpreted having regard for the contextual and practical implications which are connected with engagement under an even time rostering arrangement.
[57] In summary, my consideration has led me to conclude that clause 12.16.5 of the
Agreement prescribes that, as the totality of the entitlement arising in respect to work on a recall day, that being a day of a non-duty period as established under clause 12.2, an employee is to be paid double time, which is a payment of single time being in addition to the single time payment that applies for each day of a non-duty period. The Agreement does not provided for any further entitlement in respect to a recall day and specifically no paid leave entitlement is preserved or created when a recall day is worked.
[58] Further, the interpretation of “a day” or “days” for the purposes of clause 12.2 of the Agreement is not confined to a period from midnight to midnight but instead encompasses a period of time until the completion of a shift engagement. In addition, clause 38.3 of the Agreement has no application to any work performed on a recall day.”
[14] The conclusions reached by Commissioner Cambridge in relation to the construction of the even time roster and what the 21 day off duty period comprises, was open to him. We are satisfied that his conclusion was correct. The 21 day off duty period is not leave in the National Employment Standards context. We are satisfied, as was Commissioner Cambridge, that a day in this period is not “…a day of paid leave which is preserved or otherwise incapable of being extinguished by virtue of payment being made for the time worked.”
[15] The Commissioner rejected the additional claims of AIMPE and AMOU. He concluded that these claims would require additional words to be read into the Agreement. We agree with the Commissioner’s conclusion. We are not persuaded that clause 12.16.5 can be construed as intending to include further payments and the fact that the Accommodation Allowance Clause does require an allowance to be paid in an off duty period is consistent with our conclusion.
[16] The appellants submitted that permission to appeal should be granted because the appeals raise important questions as to the proper construction of the provisions of the Agreement, the Decision contains significant errors in construing the provisions of the Agreement and the Decision results in a manifest injustice to the employees.
[17] We are persuaded that the proper construction of off duty time in an even time roster is a matter of public interest and we have therefore decided to grant permission to appeal. However, we can identify no appealable error in the decision of Commissioner Cambridge. The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
N. Keats solicitor for the Appellant
A. Herbert of Counselfor the Respondent
Hearing details:
2015.
Sydney:
20 May.
1 [2015] FWC 1836
2 PR562130
3 Exhibit 1 before Commissioner Cambridge at paragraphs 5 to 10, 14 to 21, 40 to 41 and 62
4 [2014] FWCFB 7447
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