Australian Licenced Aircraft Engineers Association, The v Virgin Tech Pty Ltd

[2015] FWC 4707

[2015] FWC 4707

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Australian Licenced Aircraft Engineers Association, The
v
Virgin Tech Pty Ltd
(C2014/8249)

COMMISSIONER CAMBRIDGE SYDNEY, 14 JULY 2015

Dispute settlement procedure - interpretation of terms of enterprise agreement - disputed terms dealing with payment of overtime for part-time employees - determination of whether overtime is calculated by reference to hours worked in a week or upon an average over an eight week roster period - construction of relevant terms as urged by applicant found to be correct - application granted.

[1] This Decision involves an application made under section 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 16 December 2014. The application was made by the Australian Licenced Aircraft Engineers Association (the ALAEA) and taken against Virgin Tech Pty Ltd (Virgin Tech).

[2] The Commission is empowered to deal with this matter by virtue of a DSP which is found at clause 10 of the Virgin Tech Enterprise Agreement 2014 (the Agreement).

[3] The dispute was unable to be resolved by conciliation and the matter has proceeded to arbitration involving a Hearing conducted in Brisbane on 1 and 2 June 2015. The ALAEA was represented by Ms C Hartigan, counsel, who called three witnesses who provided evidence in support of the claim. In addition, Ms Hartigan introduced an uncontested witness statement which was admitted into evidence. Virgin Tech (the employer) was represented by Ms S Moody, counsel, who adduced evidence from two witnesses together with additional evidence in the form of a further witness statement, the deponent of which was not required for cross examination.

Background

[4] The question in dispute in this case has involved a claim by the ALAEA that Virgin Tech has, since July 2014, incorrectly interpreted and misapplied the terms of the Agreement which concern the basis upon which part-time employees are entitled to be paid overtime rates.

[5] In July 2014, Virgin Tech advised its employees and the ALAEA, that it had identified two particular “errors” in the way that it had been paying overtime rates to part-time employees. Virgin Tech indicated that it had mistakenly applied the relevant terms of the Agreement, and substantially similar terms contained in the predecessor instrument, the Virgin Tech Agreement 2010 (the 2010 Agreement), such that part-time employees had been paid overtime in circumstances when they were not entitled to receive overtime rates.

[6] The first “error” which was identified by Virgin Tech involved the payment of overtime rates after 38 hours in a week rather than 40 hours. This issue was broadly accepted as being an error and the ALAEA did not dispute that the terms of the Agreement were constructed upon annualised salaries based upon an average of 40 hours work per week which notionally included 38 ordinary hours plus two additional overtime hours. The average of 40 hours per week comprising 38 ordinary plus two overtime hours is plainly reflected in clauses 14, 15.1 and 24.3 of the Agreement.

[7] There was broad agreement between the Parties that the rectification of the error involving the 38 hour rather than 40 hour “trigger” for overtime would be applied prospectively and no attempt would be made by Virgin Tech to recover any apparent overpayment.

[8] The second “error” which Virgin Tech believed it had been making involved the period of time that would be used to establish when a part-time employee had worked in excess of 40 hours (38 in past error) per week and therefore become entitled to overtime rates. Virgin Tech had used the actual hours worked by part-time employees in any given week to determine whether 40 (38) hours had been exceeded and overtime rates would then apply to any hours worked above 40 (38) in that week. As pay cycles are fortnightly, the payment for any time worked in excess of 40 (38) hours in any given week would be included in the next fortnight’s pay.

[9] However, the actual hours worked by employees of Virgin Tech are established by rosters covering an eight week period. During the eight week roster period there are varying lengths of actual engagements such that, in broad terms, some weeks are “short weeks” and others are “long weeks” and the average hours are achieved once the eight week roster period has been completed. Consequently, for a full-time employee the 40 hour average is achieved at the end of the eight week roster period which encompassed 4 weeks @ 45.6 hours and 4 weeks @ 34.2 hours totalling 319.20 hours over eight weeks, which equals 39.9 hours average over the eight week period.

[10] Part-time employees of Virgin Tech work less than 40 hours per week based upon the same averaging over the eight week roster period as applies for full-time employees. A part-time employee will also have both “short” and “long” weeks during the eight week roster cycle.

[11] Prior to July of 2014, each week was assessed for the purpose of determining whether 40 (38) hours had been exceeded and if so, overtime rates applied to any hours above 40 worked in that week by a part-time employee. In July 2014, Virgin Tech announced that it considered that the Agreement did not require a week by week assessment for calculating overtime for part-time employees but, instead that overtime would be assessed by reference to any hours which exceeded 40 per week when averaged over the eight week roster period. Logically, payment of any overtime which was based upon an average which was exceeded over the eight week period could not be calculated until the end or near to the end, of the eight week period.
[12] The ALAEA did not accept the second “error” as had been identified by Virgin Tech. The ALAEA protested at the change to the basis for calculating when a part-time employee was entitled to overtime rates. The ALAEA asserted that the Agreement was being correctly interpreted and applied by Virgin Tech when, prior to July 2014, it used the actual hours worked in each week by part-time employees as the mechanism for determination of hours which exceeded 40 per week and thus attracting overtime rates.

[13] Virgin Tech implemented the changed methodology for determining the entitlement to overtime rates for part-time employees and it did not seek any recovery of apparent overpayments. The ALAEA maintained its objection to the altered arrangements for determination of overtime entitlements for part-time employees and in due course made the application in this matter.

[14] These dispute proceedings have subsequently led to the Commission being required to determine whether the terms of the Agreement provide an entitlement for part-time employees to receive overtime rates when they work in excess of 40 hours in any week or only if they work in excess of 40 hours per week upon average over the eight week roster period.

The ALAEA Case

[15] At the Hearing, Ms C Hartigan, barrister, was granted permission to appear on behalf of the ALAEA. Ms Hartigan made submissions which elaborated upon written outlines of submissions filed on behalf of the ALAEA.

[16] Ms Hartigan commenced her submissions by observing that the Parties were largely aligned in respect to the applicable principles which the Commission should follow in order to determine the matter in dispute. In this regard Ms Hartigan referred to the Full Bench Decision in The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited  1 (Golden Cockerel).

[17] It was submitted by Ms Hartigan that there was no ambiguity in the relevant text of the Agreement and that the disputed terms had a plain meaning. In this regard, Ms Hartigan stated that clause 38 Overtime of the Agreement contained the primary operative provisions relevant to the disputed interpretation. In addition, Ms Hartigan referred to other clauses particularly clauses 14 and 15 of the Agreement, which dealt with the definition of full-time and part-time employees. Further, Ms Hartigan referred to the terminology used in clauses 24 and 36 of the Agreement as providing support for the interpretation that she said applied in respect to the basis upon which overtime for part-time employees was to be determined.

[18] Ms Hartigan submitted that the proper construction of clause 38, when considered in the context of the terminology used in other relevant clauses of the Agreement, did not allow for the averaging of overtime hours over the eight week roster period. The submissions made by Ms Hartigan stressed the absence of any reference to the averaging of overtime across a roster cycle. Therefore it was submitted by the ALAEA that the plain meaning that should be given to the relevant terms contained in the Agreement and in particular clause 38.1, established that a part-time employee was entitled to overtime rates for any hours worked in excess of 40 hours in any week. Ms Hartigan submitted that the alternative interpretation involving an average of 40 hours across the eight week roster cycle would import a brand new and quite peculiar concept in respect of how overtime was to be calculated.

[19] Ms Hartigan made further submissions which addressed the prospect that the Commission may not be disposed to adopting the plain meaning of the relevant terminology as she had urged. In this respect Ms Hartigan referred to evidence in respect to the surrounding circumstances involving the negotiations which led to the establishment of the Agreement and its predecessor, the 2010 Agreement.

[20] The submissions made by Ms Hartigan on behalf of the ALAEA traced the history of the negotiations which preceded the establishment of the 2010 Agreement together with the absence of any averaging for overtime purposes during the operation of both the 2010 Agreement and the Agreement up until July 2014. Ms Hartigan submitted that the history which she had traversed established that there was a large degree of commonality between the Parties which was reflected in the practice and operation of the calculation of overtime prior to the introduction of the change implemented by Virgin Tech in July 2014.

[21] Ms Hartigan also made submissions about the established notion that had been developed by significant jurisprudence in relation to the concept that overtime rates compensated employees for various disruptions and inconvenience associated with working at times which had otherwise not been anticipated. In this respect Ms Hartigan submitted that the interpretation that was advanced by Virgin Tech did not provide compensation for part-time employees for actual additional hours worked in excess of the standard 40 hours a week.

[22] In conclusion, Ms Hartigan submitted that the Commission should accept that the plain and ordinary meaning that should be given to the words contained in the Agreement did not contemplate the averaging of hours over an eight week roster period for the purposes of any overtime entitlement. In particular it was submitted that the terms contained in the Agreement if given their plain and ordinary meaning, provided for a part-time employee to obtain an entitlement to overtime rates for any hours worked in excess of 40 in any week. Ms Hartigan urged that the Commission determine the application in favour of the interpretation as advocated on behalf of the ALAEA.

The Virgin Tech Case

[23] Ms S Moody, barrister, was granted permission to appear on behalf of Virgin Tech at the Hearing. Ms Moody referred to and relied upon written submissions which had been filed on behalf of Virgin Tech. Ms Moody made further oral submissions in elaboration of the earlier filed material and in response to the submissions made on behalf of the applicant.

[24] The submissions made by Ms Moody confirmed that the relevant principles to be applied to resolving a contest regarding the construction of an industrial instrument, such as the Agreement, are summarised in the Full Bench Decision in Golden Cockrell. Ms Moody stressed that the construction of terms of an industrial agreement started with a consideration of the ordinary meaning of its words. Ms Moody submitted that in this instance the particular terms of the Agreement were unambiguous and that the meaning for which Virgin Tech contended was open and apparent on the face of the provisions particularly those contained in clause 38.1 of the Agreement.

[25] Ms Moody made submissions which emphasised that the Commission should be satisfied that there was an absence of ambiguity in clause 38.1 of the Agreement and therefore there was no requirement to have regard to extrinsic circumstances. Consequently, Ms Moody submitted that in very large part, most of the evidence that had been provided regarding negotiations and discussions surrounding the Agreement and its predecessor the 2010 Agreement, would be irrelevant and the Commission would fall into error if it took that material into account.

[26] Ms Moody made further submissions which referred to an absence of any evidence, if it were to be relevant, about any discussion during the negotiations that led to the Agreement and the 2010 Agreement which concerned overtime for part-time employees. Ms Moody submitted that there was no common understanding that could be discerned from any of the evidence which sought to place the terminology of the relevant provisions of the Agreement against a contextual background. Ms Moody said the evidence established nothing more than the Parties’ common failure to consider the issue rather than any common intention.

[27] The submissions made by Ms Moody referred to numerous clauses contained within the Agreement and the terminology used in those provisions, which she asserted provided basis to support the construction of clause 38.1 as urged by Virgin Tech and as it had applied since July 2014. Ms Moody referred to the definition of annualised salary contained in clause 2 of the Agreement which referenced clauses 33 and 36. Ms Moody submitted that an examination of these terms established that the underlying concept throughout the whole of the Agreement was that hours of work were established by reference to the eight week roster cycle.

[28] Ms Moody also submitted that a detailed examination of clauses 14 and 15 confirmed that the Agreement established that full-time employees were engaged on the basis of working an average of 40 hours per week across a roster cycle and that the averaging concept was an inherent component of various terms contained in the Agreement. The part-time engagement provisions similarly reflected engagement on a reasonably predictable basis but for a lesser number of average hours per week than 40. Ms Moody referred also to clauses 24 and 36 of the Agreement which she said were relevant to the proper construction of clause 38. According to the submissions made by Ms Moody, an examination of these various provisions established that the Agreement contemplated an averaging process which applied to both ordinary hours and overtime and the averaging process was intended to apply for both full-time and part-time employees.

[29] Ms Moody submitted that the critical question for the construction of the relevant Agreement provisions involved those terms contained in clause 38.1 which referred to “the standard 40 hours encompassed by a Team Member’s salary.” Ms Moody made submissions which asserted that the terminology “standard 40 hours encompassed by a Team Member’s salary” was an unambiguous reference to the averaging arrangements which were a fundamental characteristic of the engagement of employees under the Agreement. Ms Moody did acknowledge that this particular terminology of clause 38.1 was awkward but she submitted that it was not ambiguous and should be given its plain meaning when supported by the terminology used by clauses 14, 15, 24 and 36 which roundly tied in the concepts of full-time and part-time employment based on an average number of 40 hours per week over a roster cycle.

[30] In further submissions, Ms Moody rejected the proposition that had been advanced by the ALAEA and which asserted that some inequity or inherent unfairness arose from any differential treatment of part-time employees vis-a-vis full-time employees in respect of entitlement to overtime rates. Ms Moody submitted that this was not a matter that the Commission could appropriately take into consideration as it would involve the prospect of the Commission rewriting the Agreement in terms that it may consider to be more just and fair. In any event, according to Ms Moody there was no inequality or inequity that arose from the construction of the Agreement provisions as advanced by Virgin Tech.

[31] In conclusion, Ms Moody submitted that the plain meaning that should be given to the relevant provisions in the Agreement established that the entitlement for a part-time employee to receive overtime rates arose in circumstances where that employee worked more than 40 hours per week calculated upon the average attained over the eight week roster cycle. Ms Moody submitted that this was the unambiguous construction that should be established for the terminology contained in clause 38.1 of the Agreement which referred to “the standard 40 hours encompassed by a Team Member’s salary.” Ms Moody urged that the Commission refrain from making the Orders sought by the ALAEA and either dismiss the matter or provide further opportunity to be heard on the nature of any Order that might arise.

Consideration

[32] The dispute in this instance has involved a fairly straightforward contest regarding the correct interpretation or construction that should apply to particular terms of the Agreement.

[33] The principles that are to apply to the approach to interpretation/construction of the terms contained in an enterprise agreement has been the subject of a Decision of a Full Bench of this Commission in the matter of The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited  2 (Golden Cockerel). At paragraph 41 of the Golden Cockerel Decision the Full Bench set out the following principles that apply to the approach to interpretation/construction of terms of an enterprise agreement:

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

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

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

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

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) 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;

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

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

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.

10. 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.”

[34] Accordingly, the principles as established by the Full Bench Decision in Golden Cockerel have been adopted and relevantly applied in this instance to the contested construction of the terms of the Agreement.

[35] The nature of the contested construction can be summarised as an argument as to what circumstances establish an entitlement for a part-time employee to receive payment of overtime rates. The ALAEA has asserted that a part-time employee is entitled to overtime rates if in any given week that employee works more than 40 hours. Alternatively, Virgin Tech contended that a part-time employee is entitled to overtime payments if in an eight week roster period that employee works more than 319.20 hours.

[36] The relevant and primary operative provisions of the Agreement are those which deal specifically with overtime and are found at clause 38 Overtime, which is in the following terms:

“38. OVERTIME

38.1 Overtime hours are those hours worked by a full time or part time Team Member in addition to the standard 40 hours encompassed by a Team Member's salary. A Team Member's salary under this Agreement is calculated on an average 40 hour working week consisting of 38 ordinary hours and two hours overtime.

38.2 In relation to casual Team Members, overtime is payable under this clause where the employee works in excess of 12 hours in a shift or 48 hours in a roster cycle.

38.3 A Team Member's manager, or on the delegation of a manager, a Team Member's supervisor or an individual Team Member, must authorise all overtime prior to overtime being worked by a Team Member before it will be paid under this Agreement (“Authorised Overtime").

38.4 A manager may delegate an authority to approve overtime to a person without further reference in appropriate circumstances.

38.5 Any Authorised Overtime worked in addition to the 40 hours encompassed by the Team Member's annualised salary will be paid at lime and a half the employee's hourly rate.

38.6 The hourly rate for determining overtime is 1/38th of the Team Member's weekly salary as set out in the relevant classification for the employee plus, where appropriate, senior engineer's allowance, permanent night shift, PCT and additional aircraft type payments.

38.7 If a Team Member is recalled to work overtime after finishing rostered working hours, a five hour minimum payment shall apply.”

[37] The most significant terms are those which are contained in the first sentence of clause 38.1 and which state; “Overtime hours are those hours worked by a full time or part time Team Member in addition to the standard 40 hours encompassed by a Team Member's salary.” Further distilled, the point of contest amounts to the meaning that should be given to the words “the standard 40 hours encompassed by a Team Member's salary.”

The Meaning of “the standard 40 hours”

[38] There is no difficulty providing for the meaning of the words the standard 40 hours encompassed by a Team Member's salary as those words would apply for a full-time employee. A full-time employee is engaged on a roster which generates an average of 40 hours per week over the eight week roster period. Therefore, any and all work of a full-time employee which is in addition to the rostered hours of work will be “overtime hours” as prescribed by clause 38.1.

[39] The circumstances for a part-time employee are fundamentally more difficult because a part-time employee works less than 40 hours per week in accordance with a roster which generates an average of less than 40 hour per week over the eight week roster period. However, clause 38.1 of the Agreement makes no distinction between full-time and part-time employees. How then do the words “standard 40 hours” in clause 38.1 apply to part-time employees?

[40] Both the ALAEA and Virgin Tech asserted that there was a plain and unambiguous meaning that should be given to the words “the standard 40 hours” appearing in clause 38.1. However, the two meanings differed fundamentally upon the time period that the words “the standard 40 hours” are to be referenced to, either a week in the case of the ALAEA, or eight weeks as was advanced by Virgin Tech.

[41] The words of the first sentence of clause 38.1 put both full-time and part-time employees under the single umbrella of the terms “standard 40 hours”. Relevantly, clause 15 of the Agreement contains terms that establish and prescribe the particular details of part-time employment. Specifically clause 15.1 states:

“15.1 A part time Team Member is an employee who is engaged to perform less than an average of 40 hours per week on a reasonably predictable basis. The 40 hours per week consists of 38 ordinary hours and two hours overtime.”

[42] Clearly, a part-time employee, by virtue of the prescription of a part-time employee as set out in clause 15.1 of the Agreement, is an employee who works less than an average of 40 hours per week. Consequently, there is a degree of apparent incompatibility with the notion of a standard 40 hours having application to a part-time employee who works an average of less than 40 hours per week.

[43] The Agreement also contains an Hours of Work clause at clause 24 which is in the following terms:

“24. HOURS OF WORK

24.1 Virgin Tech operates in a 24 hour a day, 7 days a week industry.

24.2 Team Members must be ready, willing and able to work within a 24/7 roster which includes shiftwork, night, day, weekend and public holiday operations.

24.3 Full time Team Members' hours of work will be 40 hours per week, equating to 2080 hours per year, averaged across a roster cycle. This is based on 38 ordinary hours per week plus 2 hours per week overtime that has already been incorporated into all salary classifications.

24.4 Team Members will not be rostered more than 40 hours a week averaged across a roster cycle. Team Members may be required to work reasonable additional hours as overtime. Reasonable additional hours have the same meaning as set out in the Act.”

[44] Clause 24.3 establishes that the hours of work for full-time employees will be 40 per week averaged across a roster cycle. Similarly, clause 24.4 also uses the words averaged across a roster cycle when referring to the more generic term “Team Members” as opposed to “Full time Team Members”. Significantly, neither clause 15.1 nor clause 24 uses the terminology “standard 40 hours” which is contained in clause 38.1. However, both of these clauses adopt the words “averaged across a roster cycle” which are words that are not used in clause 38.1.

[45] The words “standard 40 hours” do not appear anywhere in the Agreement other than in clause 38.1. A further examination of the relevant terms of the Agreement which deal with part-time employees, hours of work, rosters, annualised salary and overtime, has confirmed the evidence which was led from both sides and which supported the deliberate intention of the Parties to depart from the conventional notion that for overtime rate purposes each day or shift would stand alone.

[46] It is clear from the terminology of the relevant provisions of the Agreement that it does not provide overtime rates for any and all hours worked by a part-time employee outside of the rostered part-time hours for that employee. It was agreed that there was an accepted, common intention to move away from what might be described as the conventional notion contained in many Modern Awards 3 whereby a part-time employee would be entitled to overtime rates for all time worked in excess of the agreed (rostered) hours.

[47] However, there was no evidence to support that the particular words “standard 40 hours” were the subject of any active consideration by the Parties during the negotiations for the 2010 Agreement such that a common assumption of these terms might have been understood when they were introduced as clause 36.1 in the 2010 Agreement and repeated, verbatim, in clause 38.1 of the Agreement. In these circumstances, applying principle number 3 from the Golden Cockerel Decision, can the words “standard 40 hours” when considered together with the words which follow them, “encompassed by a Team Member's salary” be given a plain meaning that accords with either of the propositions as were contended by the respective Parties?

[48] It would be logical to assume that because the opening sentence of clause 38.1 was attempting to address the circumstances which triggered overtime rates for both full-time and part-time employees, it necessarily had to employ words which, inter alia, catered for the triggering that would apply for both full-time and part-time employees. In respect to full-time employees the words would need to address the fact that in “long” weeks a full-time employee would work more than 40 hours (45.6) and in “short weeks” they work less than 40 hours (34.2). Overtime rates for a full-time employee could not simply be prescribed as those in excess of 40 in a week because of the averaging involving some weeks of more and some weeks of less than 40 hours which even out over the eight week roster.

[49] In order to address the averaging for full-time employees this sentence could have easily employed the words used in other clauses of the Agreement which deal with the issue of averaging hours over a roster period. For instance, and so as to example the terminology that clause 38.1 could have used, I have firstly set out below three examples of other Agreement clauses that employ the “averaging terminology” (which is highlighted in bold), and then I have provided a hypothetical re-worded clause 38.1 incorporating the “averaging terminology” (also highlighted in bold).

Example 1

“14. FULL TIME EMPLOYMENT

A full time Team Member is an employee who is engaged to work an average of 40 hours per week across a roster cycle, consisting of 38 ordinary hours and two hours overtime.”

Example 2

“24.3 Full time Team Members' hours of work will be 40 hours per week, equating to 2080 hours per year, averaged across a roster cycle. This is based on 38 ordinary hours per week plus 2 hours per week overtime that has already been incorporated into all salary classifications.”

Example 3

“24.4 Team Members will not be rostered more than 40 hours a week averaged across a roster cycle. Team Members may be required to work reasonable additional hours as overtime. Reasonable additional hours have the same meaning as set out in the Act.”

Hypothetical Clause 38.1 incorporating the “averaging terminology”

“38.1 Overtime hours are those hours worked by a full time or part time Team Member in addition to the standard 40 hours per week encompassed by a Team Member's salary averaged across a roster cycle. A Team Member's salary under this Agreement is calculated on an average 40 hour working week consisting of 38 ordinary hours and two hours overtime.”

[50] Interestingly, if clause 38.1 was in the terms of the hypothetically re-worded example provided above, it would have the plain meaning as was urged by Virgin Tech. Instead, the clause has been framed to contemplate and cover the different circumstances which apply to both full-time and part-time employees.

[51] The terms of clause 38.1 reflect that a part-time employee would not be entitled to overtime rates for any and all hours in excess of the rostered part-time hours, but rather, only when the “standard 40 hours” are exceeded. In the absence of any “averaging terminology” the words “standard 40 hours” in this context must represent the introduction of a weekly trigger for part-time employees of any hours in excess of 40. Full-time employees will exceed the trigger for any hours worked in addition to their rostered hours because of their average of 40 (or 39.9) over the eight week roster period.

[52] Therefore the words “standard 40 hours” operate for full-time employees as a reflection of the averaging so that there is no entitlement to overtime rates in “long” weeks when 45.6 rostered hours are worked. Further, the words “standard 40 hours” operate for part-time employees to reflect that there is no entitlement to overtime rates for hours worked up to 40 in a week which are in addition to the rostered part-time hours. Therefore, by way of logical implication, all hours in excess of 40 in a week which are worked by a part-time employee attract overtime rates.

Conclusion

[53] The determination of the dispute in this instance has involved a requirement to settle a contested construction question arising from particular terms contained in an enterprise agreement. The contest has primarily focussed upon two competing propositions for the construction that should be given to clause 38.1 of the Agreement. The respective cases which were advanced by both sides each argued that the terms of clause 38.1 could be given a plain meaning. Although each side urged for a significantly different construction of the disputed terms.

[54] Upon analysis, and application of the principles for resolution of questions of contested construction as established by the Golden Cockerel Decision, I have concluded that the disputed terms are not capable of the plain meaning construction as contended and promulgated by the respondent, Virgin Tech. In summary, the absence of any “averaging terminology” in clause 38.1 and instead, the use of the terms “the standard 40 hours encompassed by a Team Member's salary” provides compelling basis to reject the construction urged by Virgin Tech which would produce an outcome that generated an averaging over a roster cycle.

[55] In respect to the construction of the terms of clause 38.1 as was urged by the applicant, I conclude that, although that construction may not be apparent or available as a plain and ordinary meaning of the terms “the standard 40 hours encompassed by a Team Member's salary” it is nevertheless, the correct construction of the terms of the Agreement having regard to the context and purpose of these particular provisions. The construction as advocated by the ALAEA, represents a logical, common intention which a reasonable person would understand having regard to the language that the Parties have used to express their agreement.

[56] In consequence of the conclusions that I have reached the application must be granted. It was not made clear as to any terms of appropriate remedy by way of an Order that might be made to reflect the determination made in favour of the applicant. There are of course a variety of potential options that the Parties are asked to consider in view of the determination of the application. It is noted that the practical impact of the contest which prompted this application developed from July 2014 and manifest as an administrative alteration to payroll calculations. It may be that the Parties agree that it would be unnecessary to reflect the determination made in this matter by way of any Order, and instead, the simple retrospective reversal of the administrative alteration made by Virgin Tech would provide appropriate basis for remedy in accordance with this Decision.

[57] The applicant is required to consult with the respondent in respect to any appropriate remedy to reflect the determination made and advise the Commission within 21 days from the date of this Decision.

COMMISSIONER

Appearances:

Ms C Hartigan of Counsel with Ms E Thornton and Mr S Purvinas of The Australian Licenced Aircraft Engineers appeared for the applicant.

Ms S Moody of Counsel with Ms L Payne appeared for Virgin Tech Pty Ltd.

Hearing details:

2015.

Brisbane:

June 1 and 2.

 1   The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited [2014] FWCFB 7447.

 2   The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited [2014] FWCFB 7447.

 3   See, for example: clause 11.6 of the Clerks – Private Sector Award 2010[MA000002] and clause 12.7 of the Fast Food Industry Award 2010[MA000003] and clause 12.7 of the Hospitality Industry (General) Award 2010[MA000009] and clause 22.1 of the Miscellaneous Award 2010[MA000104].

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