Australian Maritime Officers’ Union, ThevRiverCity Ferries Pty Ltd T/A RiverCity Ferries

[2021] FWC 6302

[2021] FWC 6302

FAIR WORK COMMISSION

REASONS FOR RECOMMENDATION

Fair Work Act 2009
s.739—Dispute resolution

Australian Maritime Officers’ Union, The
v
RiverCity Ferries Pty Ltd T/A RiverCity Ferries
(C2020/8875)

Construction, Forestry, Maritime, Mining and Energy Union
v
RiverCity Ferries Pty Ltd T/A RiverCity Ferries
(C2021/24)

DEPUTY PRESIDENT ASBURY BRISBANE, 12 NOVEMBER 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES

Overview

[1] The Australian Maritime Officers' Union (AMOU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (collectively, the Unions) apply under s.739 of the Fair Work Act 2009 (the Act) seeking that the Fair Work Commission (the Commission) deal with a dispute under the dispute resolution procedure in the RiverCity Ferries Enterprise Agreement 2020 (the RCF Agreement). The Respondent is RiverCity Ferries Pty Ltd T/A RiverCity Ferries (RCF), the employer covered by the Agreement.

[2] RCF operates passenger ferries owned by the Brisbane City Council (BCC) under a service contract with the Council, with services commencing on 4 November 2020. Prior to the commencement of the service contract with RCF, the passenger ferries owned by the Brisbane City Council were operated by Transdev, which was at that time covered by the Transdev Brisbane Ferries Enterprise Agreement 2019-2022 (the Transdev Agreement).

[3] The RCF Agreement was made with the AMOU and the CFMMEU. It was an understanding shared by all parties that the Agreement was to replicate and roll over, so far as was practical, the terms and conditions of the Transdev Agreement. The RCF Agreement was approved by the Commission on 27 October 2020 and commenced operation on 3 November 2020. The nominal expiry date of the RCF Agreement is 20 June 2022.

[4] The dispute relates to the entitlement of part-time employees to be paid overtime rates for what are described by RCF as ad hoc shifts. The parties agree that where a part-time employee has been rostered to work, and works, a certain number of ordinary hours on a particular day and is then required to work hours exceeding the rostered ordinary hours on that day, the part-time employee is entitled to payment of overtime for the additional hours worked. The dispute relates to whether employees who agree to work additional shifts on days when they have not otherwise been rostered to work, are entitled to be paid overtime rates for those shifts.

[5] The Unions contend that the RCF Agreement requires that overtime be paid to part-time employees who agree to work additional hours or shifts outside or in excess, of their minimum ordinary rostered hours. RCF contends that where a part-time employee and RCF reach a mutual written agreement to work a shift on a day on which the employee was not rostered (an ad hoc shift) the additional hours do not attract overtime, unless the additional hours result in the employee working more than 38 hours in a particular week.

[6] On 18 October 2021, I issued a Recommendation to resolve the dispute, to the effect that if RCF offers a part-time employee an additional shift in respect of which that employee had not been previously rostered as part of their usual work pattern and the employee agrees to undertake that shift, and it is an ad hoc shift on a day that the employee has not been previously rostered, that the extra agreed shift is payable at overtime rates. These are my reasons for making the Recommendation.

Procedural history

[7] The dispute was initially the subject of an application filed by the AMOU. The CFMMEU subsequently filed a similar application and requested that it be dealt with concurrently with that of the AMOU. This was agreed by all parties. The matters were listed for a conciliation conference. In advance of the conference, I issued directions requiring that that RCF file a brief written response to the applications. The dispute was not resolved at the conference and directions were issued for it to be progressed in accordance with the Dispute Settlement Procedure in clause 1.10 of the RCF Agreement. The Dispute Settlement Procedure provides that if there is no settlement of a disputed matter in a conciliation conference, the parties may jointly request that the Commission make a Recommendation in relation to aspects of the dispute about which they are unable to reach agreement.

[8] The parties jointly requested that the Commission make a Recommendation “on the papers” and agreed that they would be bound by the Recommendation subject to any appeal that may be instituted by an aggrieved party. Directions were issued for the parties to file submissions. The Unions filed submissions in accordance with the directions. RCF subsequently filed its submissions along with statements of evidence from three witnesses. The AMOU objected to witness statements being filed by ACF but indicated that if the statements were received by the Commission, the AMOU also sought to file witness statements and to cross-examine persons who had made statements upon which RCF now sought to rely. It was therefore necessary to list the matter for hearing. RCF and the CFMMEU also corresponded with the Commission indicating that they sought permission to be represented by lawyers at the hearing.

[9] Prior to the scheduled hearing date, RCF advised the Commission via email, that discussions between the parties, had resulted in a Statement of Agreed Facts and that the parties did not intend to rely on the witness statements previously filed and wished to make brief oral submissions at the hearing. The parties also agreed that no issue was pressed in these proceedings in relation to the question of transmission of business, or the terms and effect of a document previously referred to in the RCF Agreement and submissions of the parties, described as Rostering Guidelines.

[10] Given that the dispute involves the proper construction of an enterprise agreement, a matter that is usually complex, I was satisfied that it would enable the matter to be dealt with more efficiently if the CFMMEU and RCF were given permission to be legally represented. I considered that no issues of fairness arose given that AMOU has an aligned interest to that of the CFMMEU. It was also apparent that the involvement of lawyers had streamlined the case so that it could be heard more efficiently and without the need for witness evidence and cross-examination. For these reasons I granted permission for RCF and CFMMEU to be represented by Counsel at the hearing. Mr Herbert of Counsel appeared for RCF with Mr Kent, General Counsel for Transit Systems Pty Ltd of which RCF is a wholly owned subsidiary. Mr Neal of Counsel appeared for the CFMMEU with Mr Gallagher Assistant Secretary of the Maritime Union of Australia Division of the CFMMEU. The AMOU was represented by Ms Ellis, Organiser.

[11] At the hearing the parties confirmed that material set out in witness statements they had previously filed, including documents which had been referred to as contextual material, were no longer relied on and that the Commission should not have regard to the matters in the witness statements. It was also confirmed that the parties intended to refer only to the text of the Agreement to support the respective constructions they advanced. The agreed question to be the subject of a Recommendation, as articulated by Counsel for RCF and agreed by the parties, is:

If the employer offers a part-time employee an additional shift in respect of which they had not previously been rostered as part of their usual work pattern and the employee agrees to undertake that shift, and it is an ad hoc shift on a day that the employee has not previously been rostered, is that extra agreed shift payable at ordinary time or overtime rates? 1

[12] Accordingly, to determine the matter in dispute I have had regard to: the Statement of Agreed Facts; the text of the Agreement, parts of the written submissions addressing the issues in dispute: the terms of the Ports, Harbours and Enclosed Water Vessels Award 2020 (the Award) which was relevant for the purposes of the better off overall test (BOOT) when the RCF Agreement was approved by the Commission; and oral submissions made at the hearing.

The Statement of Agreed Facts

[13] The Statement of Agreed Facts is as follows:

1. RiverCity Ferries Pty Ltd (“RCF”) operates passenger ferries owned by the Brisbane City Council on the Brisbane River under a service contract with the Brisbane City Council, which contract was signed on 1 July 2020, with services commencing on 4 November 2020.

2. Prior to the commencement of the service contract between RCF and the Brisbane City Council, the passenger ferries owned by the Brisbane City Council were operated by Transdev, which was at that time covered by the Transdev Brisbane Ferries Enterprise Agreement 2019-2022 (“the Transdev agreement”).

3. At the time of signing the service contract, RCF was not covered by an enterprise agreement in relation to the employment of the employees to be engaged for the purposes of that contract.

4. On or about 12 October 2020 RCF made a single enterprise greenfields agreement with the AMOU, which agreement was known as RiverCity Ferries Enterprise Agreement 2020 (“the EBA”).

5. It was an understanding shared by all parties that the EBA was to replicate and “rollover”, so far as was practical, the terms and conditions of the Transdev agreement.

6. The EBA was approved by the FWC on 27 October 2020 and commenced operation on 3 November 2020. The nominal expiry date of the EBA is 20 June 2022. The CFMMEU were made a party to the EBA by order of the FWC on 28 October 2020.

7. The Australian Maritime Officers Union and the Construction Forestry Maritime Mining and Energy Union have each given notice under section 183 of the FW Act that each of those organisations wants the EBA to cover it, and the FWC has noted that fact.

8. The underpinning modern award for the EBA is the Ports Harbours and Enclosed Water Vessels Award 2020.

9. Upon commencing operations, RCF commenced employing full-time, part-time and casual employees.

10. On or about 26 November 2020 an issue was raised between the parties as to rate of pay provided for under the EBA for part-time employees working a shift outside their “normal rostered shifts”.

11. The parties agree that where a part-time employee has been rostered to work a certain number of ordinary hours on a given day and is then required to work additional hours in excess of ordinary hours rostered that day, the part-time employee is entitled to payment of overtime for the additional hours worked.

12. The disagreement between the parties was progressed in accordance with the dispute resolution procedures under the EBA, resulting in two applications being filed one by the AMOU and one by the CFMMEU to deal with a dispute in accordance with the dispute settlement procedure.

13. The respective positions of the parties are set out in those two applications, the joint RCF response to those applications and the written submissions of the parties filed with the Commission.

14. No issue is pressed in these proceedings in relation to the question of transmission of business, or the terms and effect of the document described as Rostering Guidelines.

15. Each of the parties has agreed to accept as binding upon them the recommendation of the Fair Work Commission in resolution of this matter, subject only to any rights of appeal which may exist under the dispute resolution proceedings, which any party may seek to exercise.

Relevant provisions of the RCF Agreement

[14] The provisions of the RCF Agreement relevant to the matter in dispute are as follows:

2.1 Types of Employment

…

(b) ‘Part-Time Employee’

i. A part-time employee is a permanent employee who enters into an agreement to work less than 38 ordinary hours per week provided that the employee is rostered for a minimum of 4 hours for each day the employee is required to work.

ii. A part -time employee shall be paid an hourly rate of 1/38th of the appropriate weekly wage rate of a full-time employee,

iii. A part time employee will be rostered to work a minimum of 15 hours per week unless mutually agreed between both parties in writing. At the time of engagement, the employer and the part-time employee will agree in writing on a regular pattern of work, hours worked each day, days of the week the employee will work and start and finishing times each day (subject to timetable changes).

…

4.1 Hours of Work

(a) The Ordinary hours for full-time employees, inclusive of meal breaks, will be a minimum of six (6) hours and a maximum of eleven hours and twenty-four minutes (11.4 hours) on any one day.

(b) Ordinary Hours - full-time Employee

The ordinary hours of work that will be paid for a full-time Employee will be thirty eight (38) hours per week. The ordinary hours shall be worked on a roster on any day between Monday to Sunday inclusive.

(c) Ordinary Hours - part-time Employee

The ordinary hours of work for a part-time Employee will be no less than 15 hours per week and no more than 38 hours per week. The ordinary hours shall be worked on a roster any day between Monday to Sunday inclusive with a minimum engagement of four (4) hours each day the employee is required to work.

4.2 Overtime

(a) All time worked outside or in excess of the already rostered ordinary working hours per day and as referenced in clause 4.1 (a-d) stands alone and shall be paid for at the ordinary rate of one and one-half times the ordinary rate (x1.5) for the first three (3) hours and double time (x2.0) for hours worked thereafter per day.

…

(c) Each daily overtime hour will be isolated from weekly rostered work.

…

4.4 Rostering

…

(g) Notice required for roster changes

As far as is reasonably practicable, a minimum of three (3) weeks' notice shall be given for a roster change. In the event of a roster change, the employees affected, and if the employees choose, their Employee Organisation shall be consulted. This does not include shift changes required operationally on an ad-hoe basis

…

(n) Amendments

Ad-hoc amendments to a Weekly Roster will be made to meet any operational requirement including special events, charters, training and additional services provided under the BCC contract.

If Brisbane City Council make changes that will impact the delivery of services and changes the timetable, the Employer will endeavour to maximise the number of days off in the new roster in consultation with the Roster Review Committee and the employees affected in accordance with Clause 2.3.10 of this Agreement, the relevant elected union delegates who have been previously notified to and recognized by the Employer will be consulted and present during all discussions around roster changes and implementation of rosters and associated changes before implementation.”

Submissions

RCF

[15] In its written outline of submissions RCF said that in late November 2020, a dispute arose between RCF and the Unions regarding the wages payable to part-time employees who work ordinary hours in excess of their agreed hours, but less than 38 ordinary hours a week. RCF offered part-time employees additional shifts on an ad hoc basis in addition to their agreed hours. These offers were to fill shifts that had become vacant during the three-week roster period because of the absence of another employee. RCF submitted that if the additional shifts did not take the total hours worked by a part-time employee beyond 38 ordinary hours in a week, the employee would be paid the ordinary hourly rate of pay for hours worked on the shift.

[16] In response to the AMOU’s written submissions, RCF cited the decision of a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd (Berri) 2noting that the construction of an enterprise agreement begins with a consideration of the ordinary meaning of the relevant words. It was submitted by RCF that the resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose, which appear from:

•  the text of the agreement viewed as a whole;

•  the disputed provision’s place and arrangement in the agreement;

•  the legislative context under which the agreement was made and in which it operates.

[17] RCF submitted that clause 2(b)(i) of the RCF Agreement is clear and unambiguous. The clause provides that a part-time employee is a permanent employee who enters into an agreement to work less than 38 ordinary hours per week provided that the employee is rostered for a minimum of 4 hours for each day the employee is required to work. Clause 2.1(b)(iii) is also clear, because a part time employee will be rostered to work a minimum of 15 hours per week unless mutually agreed between both parties in writing. At the time of engagement, the employer and the part-time employee will agree in writing on a regular pattern of work, hours worked each day, days of the week the employee will work and start and finishing times each day (subject to timetable changes). Clause 2.1(b)(iii) provides the part-time employee and RCF with the ability to mutually agree to work additional hours with a guaranteed minimum of 15 hours per week.

[18] RCF further submitted that Clause 4.1(c) which appears later in the RCF Agreement is consistent with this view because it provides that the ordinary hours of work for a part-time employee will be no less than 15 hours per week and no more than 38 hours per week, worked on a roster on any day between Monday to Sunday inclusive with a minimum engagement of four hours each day the employee is required to work. The wording is consistent with a view that the parties intended under the RCF Agreement to have flexibility around the hours a part-time employee would work.

[19] RCF submitted that that where it differs with the Unions is in the interpretation of Clause 4.2(a) of the RCF Agreement. RCF accepts that part-time employees are entitled to overtime and agrees that part-time employees who work outside or in excess of already rostered working hours per day should receive overtime. Additionally, RCF accepts that where a part-time employee works more than 38 hours in a week the employee is entitled to overtime. However, where a part-time employee and RCF reach a mutual written agreement to work additional ordinary hours less than 38 ordinary hours per week, the additional hours do not attract overtime.

[20] According to RCF, this interpretation fits comfortably against the legislative context that an employee working more than their rostered ordinary hours on a particular day is entitled to be paid overtime. In contrast, the AMOU submission requires that other circumstances are inferred into the clause. According to the AMOU, once a part-time employee agrees on the number of hours per week, then any additional hours worked attract overtime. RCF submitted that this is contrary to the Berri principles and requires a convoluted and complex factual scenario for the interpretation to be accepted.

[21] Further, RCF submitted that those words do not appear in the RCF Agreement and that had words similar to those in clause 10.8 of the Ports, Harbours and Enclosed Water Vessels Award 2020 (Award) been incorporated into the RCF Agreement, then the outcome would be different. Clause 10.8 of the Award provides that all time worked in excess of the hours as mutually agreed will be overtime. Clause 4.2(a) of the RCF Agreement is more akin to a combination of clause 18.1 of the Award which states that overtime is payable to employees for any time worked outside of ordinary hours on a Monday to Friday (except a public holiday), and clause 18.2 which sets the rates at which the overtime is to be paid (1.5 times for the first 3 hours and double time thereafter).

[22] In its written and oral submissions, RCF contended that part time employees who are offered and accept an additional shift on days on which they are not already rostered are to be paid at ordinary rates for all time worked up to a maximum of 38 hours in a week. These additional shifts are referred to by RCF as “ad hoc” shifts. 3 Clause 2.1(b) of the RCF Agreement stipulates that part-time employees are to work a minimum of 4 ordinary hours per day.4 It was submitted that there are no limits beyond this other than what is stipulated in clause 2.1(b)(iii), which provides that part time employees will be rostered to work a minimum of 15 hours per week, unless mutually agreed otherwise, in writing. The clause further provides that part time employees will agree in writing to a regular pattern of work, hours worked each day, days of the week the employee will work and start and finishing times. However, this is subject to timetable changes.5

[23] There is capacity to change those hours on an ad hoc or a permanent basis. For example, if Employee X agreed to work every Monday, then Mondays would be considered Employee X’s ordinary hours of work. However, there are no other limits placed on Employee X other than not to work more than 38 hours a week and being rostered for a minimum of 15 hours per week, unless mutually agreed otherwise. 6

[24] The consultation provision in clause 2.3 of the RCF Agreement also deals with changes to ordinary hours of work. However, RCF submits that this clause has no application to the issue in question as the consultation provision concerns major changes and not ad hoc changes. It was stressed that the issue in question in this case relates to ad hoc shifts. For example, if Employee Y calls in sick on Wednesday on which they are rostered, RCF would then contact employees asking whether they are prepared to work on the Wednesday shift that was vacated by Employee Y. If Employee X, who normally works on Mondays, accepted this shift despite ordinarily not working on Wednesday, it is that Wednesday shift worked by Employee X that is the subject of these proceedings. In particular, the dispute concerns how this shift is to be paid. 7

[25] RCF then referred to clause 4.1(c) which states that the ordinary hours of part time employees “will be no less than 15 per week and no more than 38 hours per week”. 8 RCF accepts that where an extra shift is worked, so that the ordinary hours exceed 38 in a week, there is no question that the individual would be paid at overtime rates. Clause 4.4 deals with rostering which is a contextual matter. In particular, clause 4.4(g) discusses the notice required for roster changes, and the notice required, as far as is reasonably practicable, is a minimum of three weeks’ notice for a roster change. In the last line of this clause, it is stated that: “This does not include shift changes required operationally on an ad-hoc basis.” RCF submitted that based on this sub-clause, three weeks’ notice is not required if the Monday worker works a shift on Wednesday on an ad hoc basis.

[26] Clause 4.4(n) deals with amendments, stating that “Ad-hoc amendments to a Weekly Roster will be made to meet any operational requirement”. RCF submitted that this clause includes reference to matters which may not be thought to be ad hoc but are expressly included for that purpose. 9 It was also submitted that the RCF Agreement does grant permission and expressly contemplates ad hoc amendments to a weekly roster that meet any operational requirements.10 It was noted that the RCF Agreement does not state who might participate in those ad hoc changes, but simply mentions that they can occur. In the real world, this would mean that all employees are available to participate in an ad hoc amendment to the roster to meet operational requirements.

[27] According to RCF, the key clause for consideration is clause 4.2, which specifically relates to overtime. Clause 4.2(a) refers to “ordinary working hours per day” and not per week or per roster round. The only excess that is referred to in the first part of the clause is hours worked in excess of the already rostered ordinary working hours per day. With reference to the example provided earlier in its submissions, regarding the Monday worker working on a Wednesday shift, that individual was not rostered to work any hours at all on Wednesday. The roster would be required to be changed to take the name of the originally rostered employee off and to put the Monday worker’s name on the roster in order for that worker to participate in the roster and have all the usual payroll consequences of reporting in for work that day. It was also submitted that in these circumstances, the name of one worker is actually removed from the roster for the particular shift and the name of the replacement worker is inserted. This is done electronically and sent to RCF’s payroll department.

[28] If the Monday worker was working an eight-hour shift, every one of those eight hours would be ordinary time. However, if that worker was required to work additional hours on that day, due to late running, then the hours in excess of the hours for which the worker was rostered to work on that day will be overtime. But because the Monday worker turns up to work, that worker has already been rostered to work eight hours on that day, and those hours are not in excess of the hours the worker had already been rostered to work. It is only when hours in excess of the rostered eight hours are worked, that clause 4.2 is triggered. 11

[29] In response to a question from me in relation to the cumulative effect on the ordinary weekly hours of an employee who volunteered to work an ad hoc shift on a day on which the employee was not rostered and was paid at ordinary rates, Mr Herbert confirmed RCF’s position that if working the ad hoc shift caused the employee to work more than 38 hours in a week, the hours in excess of 38 would be paid for at overtime rates. Similarly, if a part time employee was rostered to work four shifts of nine hours Monday to Thursday (a total of 36 ordinary hours) and then worked an additional shift on the Friday of that week, after the first two hours of the Friday shift, the employee would have worked 38 hours and would be entitled to be paid overtime for the balance of that shift in accordance with clause 4.2. This is because the time worked exceeds the ordinary hours in clause 4.1(c). 12 Mr Herbert emphasised that the ad hoc shift in such circumstances would not be overtime, but if the effect of working the extra ordinary time was that the employee worked in excess of 38 hours in the week, the limit in clause 4.1(c) would be triggered and clause 4.2 would pick up the hours in excess of 38 as being overtime because it specifically refers to time worked outside or in excess of the hours “referenced in clause 4.1(a) to (d)”.13

[30] Similarly, where a part-time employee who usually works 36 hours on Monday, Tuesday, Wednesday and Friday, but is not usually rostered to work on Thursday, works an ad hoc shift on Thursday, the hours on Thursday would be ordinary rostered hours and the hours in excess of 38 in that week on the Friday would be paid at overtime rates because they would be outside the parameters in clause 4.1(c). 14 In response to a question as to whether RCF contends that it can direct part-time employees to work ad hoc shifts, Mr Herbert first said that the provisions of the RCF Agreement in this regard are ambiguous and the matter does not require resolution for the purposes of this dispute, because it is not part of the factual matrix in respect of which I have been asked to make a recommendation.15 Mr Herbert later submitted that the proper inference to be drawn from the necessity that there be agreements in relation to hours of part time employees in clause 2.1(b), which requires that part time employees enter into an agreement to work less than 38 ordinary hours per week,16 is that by agreeing to work an ad hoc shift, employees enter into a further agreement, which specifies the regular hours in the situation where the employee works an ad hoc shift. Accordingly, if a part-time employee wishes to work a different set of hours from those that are agreed to when the employee commences employment, even if it only be on an ad hoc basis, it requires agreement or else the employer is not honouring the agreement that was made when the employee started.17

[31] Further, Mr Herbert submitted that clause 2.1(b) infers that an agreement is required, and RCF will always seek, and has always sought agreement, for an employee to work an ad hoc shift. What is permitted is that an agreement can be reached to alter the hours that the employee had originally agreed to work and where this is done on an ad hoc basis, that is a matter between the employee and employer. As a consequence of that agreement, the roster is changed for the day on which the ad hoc shift is worked, and the employee goes on the roster and is rostered for that day, and accordingly is not entitled to be paid overtime for the already rostered day. 18 The ad hoc shift is then worked on an already rostered day, because the roster has been changed to put the particular part-time employee on the roster, for the duration of the shift. It is only if the employee works hours in addition to the shift that overtime would apply. This is because the employee has been “rostered” when the roster is changed, as a result of the agreement to work an extra day.19 Mr Herbert further argued that if overtime was intended to be paid for in circumstances other than those in clause 4.4, then words would be required to be inserted into that clause.20

[32] In practical terms it is RCF’s submission that in circumstances where an employee who was rostered to a particular shift is absent on sick leave, RCF can then offer that shift to other employees. If an employee agrees to work that shift, it becomes an ad hoc shift for the employee who agrees to work and the employee is considered to be already rostered and is paid ordinary hours for that shift, provided that working the shift does not take the employee over 38 hours for the week.

[33] RCF further submitted that the effect of the Award clause dealing with part-time employment is in accordance with its submissions. In reply to the CFMMEU’s submission to the contrary, RCF contended that the submission failed to refer to clause 10.6 of the Award, which states that “any agreed variation to the regular pattern of work will be recorded in writing.” It is RCF’s position that an agreed variation does not need to be a variation that makes a new regular pattern of work. The reference to “mutually agreed” does not necessarily mean by way of a variation of the regular pattern of hours, but in this context, if one day is added to the pattern, it can interrupt the pattern during that week which would then create another pattern the next week. That is a variation to the regular pattern of hours for which consent is required. It is only if those hours are directed by the employer that it is not by mutual agreement and therefore is overtime. 21

[34] The mutually agreed change does not need to be in writing, but in situations where the roster is altered by way of the parties exchanging written messages, and there is a written addition of the person’s name onto the roster, such requirements are met. Whilst noting this is not a matter before me, Mr Herbert advised that in these circumstances, the Award specifically allows for the original regular pattern of hours to be varied by mutual agreement between the parties. 22

[35] In relation to the CFMMEU’s contention that hours can be changed for a part time employee, but not on an ad hoc basis, RCF posed a rhetorical question as to how regular do the ad hoc changes need to be before they become regular changes? RCF contended that the dividing line between regular and ad hoc for the purposes of clause 2.1(b)(iii), is the employer and employee agreeing in writing. If there is an agreement in writing to one day or one day for the next three weeks, the CFMMEU’s argument is that this is ad hoc. The question is if the change is one day for the next, 8-12 weeks, is that regular enough for it to no longer be ad hoc? 23

[36] RCF submitted that there is no dividing line between ad hoc and regular. If changes are in writing and are agreed, irrespective of whether it is for one day, one week or one month, it is still a change by agreement. There is no basis for the contention that RCF cannot reach agreement with a part time employee for a change for one day but can do it for one week or one year because that would be more regular. 24

[37] Mr Herbert further stated that ad hoc change within the meaning in clause 4.4(n) of the RCF Agreement, is brought about due to operational reasons. It does include special events or additional services but also includes ad hoc amendments to the weekly roster that requires different working arrangements other than those that were initially prescribed on the roster. 25 Ad hoc means occasional and refers to ad hoc absences and ad hoc availability.26

[38] That a part time employee and the employer can agree to change the employee’s initially agreed rostered hours disposes of the argument that you cannot do that from time to time and that changes must be on the basis of introducing a new set of weekly, monthly or yearly arrangements. A variation to those hours by consent is a variation to those hours.

[39] In concluding, Mr Herbert pointed to the terms of clause 4.1(c) which stipulates that “the ordinary hours shall be worked on a roster”. Therefore, the employee must be on the roster to work ordinary hours. The hours that are on the roster against a particular employee’s name are the rostered hours for the purposes of clause 4.2, and if the employee has hours rostered on that day, and works more than the rostered hours, that will become overtime.

AMOU

[40] In its written submissions, the AMOU said that there are no provisions in the Agreement that allow for the overtime to be voluntarily paid at ordinary time and contend that it can only be agreed by an individual flexibility agreement or by varying the Agreement. It is the AMOU’s view that Clause 4.2(a) of the Agreement confirms that all time outside of the ordinary rostered hours should be paid at overtime. The AMOU submitted that paying the overtime rates to part-time employees when they work an extra shift outside of their ordinary shifts, is consistent with clause 10.2 of the Award. 27

[41] According to the AMOU, while ad hoc shifts are voluntary, RCF’s construction of the Agreement involves implying that those shifts can be paid at ordinary rates. While the shifts can be changed, the applicable rate of pay cannot be changed and RCF has not established that employees have volunteered to work what are overtime shifts, at ordinary rates.

[42] While acknowledging RCF’s submission that it texts or emails employees offering extra shifts, and assuming that employees respond, the AMOU submitted that there is no evidence that employees have agreed to work the shifts at ordinary rates. Clause 4.2(a) of the RCF Agreement confirms that all time outside of the ordinary rostered hours should be paid at overtime. Clause 4.1(c) of the RCF Agreement deems ordinary time for part-time employees to be between 15 and 38 hours per week. Clause 2.1(b)(iii) confirms that the employer and employee will agree in writing on a regular pattern of work including the hours worked and on what days of the week. Clause 4.2(a) confirms that all time outside or the already rostered ordinary working hours should be paid at time and a-half for the first three hours and double time thereafter.

[43] In oral submissions at the hearing Ms Ellis for the AMOU provided context in respect of the way the RCF Agreement works around the roster and single days. 28 In this regard, Ms Ellis submitted that the RCF Agreement provides for flexibility of rostering. The roster runs from Monday to Sunday and allows for shifts with a duration of between 6 and 11.4 hours so that employees can be rostered – for example – four days on and three days off before hitting the maximum ordinary hours. If the roster provided for 7.6 hour shifts the only option for rostering would be five days on and two days off. To allow for flexibility, the RCF Agreement provides for six to 11.4 hour shifts and that also flows onto the weekend rates which are already higher. This allows employees to work more than 38 hours because they are going to hit the weekend where overtime is paid in any event.29

[44] Another way in which overtime can be paid under the RCF Agreement is if the employee is asked to stay back and work an extra hour after the employee’s rostered shift. This is the reason for the clauses in the RCF Agreement which stipulate that overtime on a single day, stands alone and which ensure that employees are being compensated to work in excess of their ordinary hours. If, for whatever reason, a part-time employee works an extra shift or an extended shift, but by Sunday the employee has only worked 30 hours, that clause ensures that the employee is paid overtime on that particular day, so that overtime rates absorbed by the shift penalties for ordinary shifts worked on Sunday. 30

[45] Ms Ellis also submitted that clause 4.2(a) would not provide for time worked “outside” or “in excess” of ordinary working hours per day if they were not two different things. Hours that are outside of the already rostered ordinary working hours per day are outside of that day – that is hours worked on a different day. Hours in excess of the already rostered ordinary working hours per day are extra hours added to the shift on that day. According to the AMOU, part time employees are entitled to be paid overtime rates in both scenarios.

[46] The AMOU further submitted that the status quo should remain but RCF had stopped paying overtime on 26 November as outlined in the Statement of Agreed Facts. 31 In conclusion the AMOU submitted that a roster change is not the same as adding an ad hoc shift to the roster. Any clause in the RCF Agreement that has a reference to three weeks’ notice, is with regards to the actual roster and the cycle of three weeks, six weeks or nine weeks. Clause 2.1(b)(iii) cannot be used to establish an extra ad hoc shift.32

CFMMEU

[47] In its written submissions, the CFMMEU said that clause 4.1(c) of the RCF Agreement makes clear that “the ordinary hours of work for a part time employee will be no less than 15 hours per week and no more than 38 hours per week”. Simply stated, clause 4.1(c) allows RCF to roster a part-time employee for between a minimum of 15 and maximum of 38 ordinary hours of work per week provided that the ordinary hours are agreed in advance in accordance with clause 2.1(b).

[48] The CFMMEU highlighted that RCF operates a three week roster and in accordance with clause 2.1(b), a part-time employee’s “regular pattern of work” including “hours worked each day, days of the week the employee will work and start and finishing times each day (subject to timetable changes)” is agreed with a part-time employee upon engagement within the limits set by clause 4.1(c) on a part-time employee’s ordinary hours of work.

[49] The CFMMEU submitted that a part-time employee’s roster will then indicate the days of the week on which the part-time employee is to work and the number of ordinary hours of work to be worked between start and finish times on each day the part-time employee is rostered. A roster change requires three weeks written notice to an employee and consultation in accordance with clause 4.4(g), save for a “shift change” made on an operational or ad hoc basis.

[50] The CFMMEU contended that a shift change in accordance with clause 4.4(n) to meet the operational requirements of RCF, which requires a part time employee to work hours additional to those already agreed, provides the flexibility required by the objectives of the Agreement. The compensation for the concomitant flexibility on the part of a part time employee is the payment of overtime in accordance with clause 4.2(a) of the RCF Agreement. The CFMMEU submitted that Clause 4.2(a) makes clear that overtime is payable to employees for “all time worked outside or in excess of the already rostered ordinary working hours per day”.

[51] The entitlement to overtime is therefore contingent on an employee working “outside” or “in excess” of their already agreed and rostered hours of work, be they hours worked in excess or outside of hours already agreed and rostered to be worked on a given day, or hours worked in excess or outside of hours already agreed and rostered to be worked in any given week. Further, the CFMMEU contended that the reference to “working hours per day” in clause 4.2(a) does not relieve RCF of the obligation to pay overtime on hours worked by a part time employee on a day not already rostered but worked by agreement as an ad hoc shift due to operational requirements.

[52] It was submitted by the CFMMEU that the hours so worked are equally “time worked outside or in excess” of the “already rostered ordinary working hours per day” in the sense that they are additional to already agreed and rostered ordinary working hours, which are of course worked per day. The CFMMEU also submitted that further support for this construction is found in the use of the preposition “outside of” in clause 4.2(a).

[53] Clause 4.2(a) requires payment of overtime on all hours worked “outside of” the agreed already rostered hours work, for example, hours worked on a day or days outside of the hours of work on days of the week on which a part time employee is already rostered by agreement, not only as the Respondent would have it, on hours of work “in excess” of hours of work already agreed or rostered to be worked on any given day.

[54] The CFMMEU submitted that its suggested construction is also supported by the language of clause 4.2(c) that each daily overtime hour will be “isolated from weekly rostered work”. This is because overtime is payable on all hours worked “in excess” or “outside of” ordinary hours of work already rostered for any given week, whether the overtime is worked on a day on which a part time employee is already rostered to work ordinary hours or not. According to the CFMMEU, it does not matter whether the additional hours are worked in excess of hours already rostered to be worked on a given day, or on a day not already rostered. What is required is that the hours worked are “isolated” from, “outside” of, or “in excess” of, the already “rostered ordinary working hours per day” or “weekly rostered work”.

[55] In support of its construction of the RCF Agreement, the CFMMEU points to the Award against which the better off overall test (BOOT) was conducted which deals with part time employment at clause 10 and relevantly provides:

“10.5 At the time of engagement the employer and the part-time employee will agree in writing, on a regular pattern of work, specifying at least:

(a) the hours worked each day;

(b) the days of the week the employee will work; and

(c) the actual starting and finishing times eachday.

…

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

[56] If RCF’s suggested construction of the relevant provisions of the Agreement is accepted, there is a real issue as to whether the Agreement passes the BOOT. By virtue of clause 10.5 of the Award, a part-time employee’s regular pattern of work includes “the hours worked each day” and “the days of the week the employee will work”. By virtue of clause 10.8 of the Award, all time worked by a part-time employee in excess of the “hours as mutually agreed” will be overtime. Clause 10.5 requires mutual agreement in writing on both the hours of work per day and the days of a week on which a part time employee will work.

[57] Accordingly, overtime worked under the Award is any work in excess of the hours of work already agreed to be worked on any given day, or any work in excess of the hours of work on the days already agreed to be worked in any given week. So far as the Award is concerned, there is no qualification, now suggested by the Respondent to be the consequence of a proper construction of the relevant terms of the Agreement, that to be entitled to payment of overtime, the extra hours worked by a part time employee must be in excess of hours already rostered on a given day. Rather, “(a)ll time worked” in excess of hours as agreed, including an ad hoc shift not already rostered but “mutually agreed” due to operational requirements, “will be overtime”.

[58] The task is always one of interpreting the text of the agreement with the common intention of the parties to be identified by reference to that which a reasonable person would understand by the language the parties have used to express their agreement. The CFMMEU submits that the ordinary meaning of the language of clauses 2.1, 4.1, 4.2 and 4.4 of the RCF Agreement make clear that overtime is payable to a part time employee on all hours worked in excess of already rostered ordinary hours without qualification.

[59] The CFMMEU submitted that the language of the relevant clauses uses the descriptors “days” and “week” interchangeably because ordinary hours having been agreed with a part time employee upon engagement, are then rostered and worked on a day or days per week, over a three week cycle. The CFMMEU contended that so far as the entitlement to overtime is concerned, there is no distinction in the language of the relevant clauses between hours worked outside or in excess of hours already rostered on a given day, and hours worked on a day on which a part time employee is not already rostered to work. In the latter case, the hours worked are equally “outside or in excess of” hours already rostered. The CFMMEU submitted that to suggest otherwise is to offend the principles stated in Berri and to attempt to re-write the text of the Agreement.

[60] In oral submissions at the hearing, Mr Neal for the CFMMEU emphasised that clause 2.1(b)(i) of the RCF Agreement makes clear that a part-time employee is a permanent employee who enters into an agreement to work less than 38 hours per week. Clause 2.1(b)(iii) further states that a part-time employee will be rostered to work a minimum of 15 hours per week unless mutually agreed otherwise in writing. Clause 2.1(b)(ii) of the RCF Agreement stipulates that at the time of engagement, a part-time employee’s regular pattern of work, including hours worked each day, days of the week the employee will work, start and finishing times each day, subject to timetable changes, is agreed. At the very outset, the RCF Agreement sets up, upon engagement of a part-time employee, a regular pattern of work, including ordinary weekly hours which are between a span of 15 and 38 hours per week. Clause 4.1(c) confirms that the span of hours that is the subject of agreement between RCF and the part time employee, is between 15 and no more than 38 hours per week. 33

[61] It is clear from those clauses, that a part time employee upon engagement, agrees to their ordinary hours of work and their regular pattern of work. This is agreed to in advance, and that conclusion is important when considering the meaning of the term “already rostered” in clause 4.2(a).

[62] I sought clarification of CFMMEU’s position in respect to the inclusion of the reference “(subject to timetable changes)” in clause 2.1(b)(iii) and whether the reference covered a scenario where a timetable may slip by 10 minutes in the context where employees are engaged to cover a particular service to meet a timetable. Mr Neal’s response was that the reference to timetable changes does not derogate from the fact that the regular pattern of work or the ordinary hours of work are agreed in advance.

[63] Mr Neal submitted that the critical concept is that the hours of work per week, per day and the days of work on which a part time employee is rostered to work are agreed in advance. The question then arises as to what happens if there is a request or direction by the employer for those hours to change. In these circumstances, clause 4.2 would become relevant and must be read with clause 4.1(c).

[64] Mr Neal also submitted that when the employer requires a part-time employee to work in excess of agreed hours, this must equate to the already rostered ordinary working hours because that is what has been agreed. Regardless of whether the additional hours are at the end of a shift or worked as an additional shift in that week, they are in excess of or outside the already rostered ordinary working hours. It is CFMMEU’s submission that this is why there is a reference in cl 4.2(a) not only to ordinary working hours per day but also the ordinary hours per week, the span of which for a part-time employee, are provided for in clause 4.1(c). 34

[65] It was acknowledged hours of work agreed with a part time employee upon engagement, are not struck ad infinitum and may be increased or decreased by agreement. However, such agreement will then become the part-time employee's new or current ordinary hours of work. The issue for determination in the present case relates to ad hoc shift requests. The CFMMEU’s submission is that when such a request is for a part time employee to work ashift outside of that employee’s already rostered hours of work, those hours attract overtime. This is reflected in clause 4.2(a) of the RCF Agreement, which picks up the weekly rostered ordinary hours of a part-time employee.

[66] There is no qualification anywhere in the RCF Agreement, and most particularly, clause 4.2(a) does not provide that only hours worked in excess of 38 hours per week by a part time employee attract overtime. The words are clear that any work outside, or in excess of, the rostered ordinary working hours per day or as referenced in clauses 4.1(a) to (d), is overtime. The hours referenced in clause 4.1(a) to (d) are a span, and a part time employee works agreed hours per week, within that span. 35

[67] Clause 4.2(a) has work to do not only in relation to extra hours on a day that a part-time employee is already rostered, but also on an additional shift worked within a week that is in excess of the employee’s ordinary hours. The shift does not have to result in the employee working in excess of 38 hours to attract overtime payments. Overtime is also payable when the shift is in excess of or outside the already rostered ordinary working hours of a part-time employee. 36

[68] While clause 4.2(c), is curiously worded, it supports this construction by stating that “each daily overtime hour will be isolated from weekly rostered work.” The effect of this provisions is that any hour of daily overtime worked, that is in excess of hours rostered on any given day, will be isolated from weekly rostered work, precisely because it is in excess of or outside, rostered ordinary shifts for a part-time employee (using the terminology of 4.2(a)). Similarly, any work by a part time employee on an ad hoc shift that is in excess of their ordinary hours of work, is isolated from weekly rostered work because it is in addition to it. In this regard, the CFMMEU submitted that cl 4.2(c) also supports its suggested construction, and again, in either case the hours are isolated from weekly rostered work and not from a 38 hour week.

[69] Mr Neal confirmed, in response to a question from me, that the reference to “already rostered ordinary working hours” means that clause 2.1(b)(iii) is to be read in conjunction with clause 4.1(c). Mr Neal further contended that the construction advanced by the CFMMEU is simpler than that of the RCF and that the construction advanced by RCF would require a lot more implication of terminology into the RCF Agreement.

[70] Mr Neal then referred to clause 10.5 of the Award and submitted that the terms as set out in that clause are similar to those in clause 2.1(b)(iii) of the RCF Agreement. The entitlement to overtime under the Award is simply stated as any hours worked in excess of those mutually agreed (see clause 10.8). It is the CFMMEU’s submission that overtime under the RCF Agreement, is similarly payable on any hours in excess of ordinary rostered hours as agreed upon engagement in accordance with clause 2.1(b)(iii). The CFMMEU also submits that the entitlement to overtime or the payment of overtime under the Award, is identical to the entitlement to the payment of overtime under the RCF Agreement, and that is reflected in the fact that the Form F17 filed in support of the application for approval of the RCF Agreement, does not declare overtime under the agreement as a less beneficial entitlement than the relevant Award term because they provide identical entitlements.

[71] Mr Neal submitted that this may be a matter that can be taken into consideration when determining the intent of the drafters of the clause of the RCF Agreement, particularly given the similar language of clause 10.5 of the Award and the relevant clauses regarding part time employee’s ordinary hours of work under the RCF Agreement (particularly clause 2.1(b)(iii)).

Approach to construction of enterprise agreements

[72] The cases dealing with the approach to the task of construing an enterprise agreement were distilled into principles and set out in a Decision of a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd as follows: 37

“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 aide 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 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.”

Consideration

[73] The question for arbitration concerns whether, if the employer offers a part time employee an additional shift in respect of which the part time employee had not previously been rostered as part of their usual work pattern and the employee agrees to undertake that shift, and it is an ad hoc shift on a day that the employee has not previously been rostered, is that extra agreed shift payable at ordinary time or overtime rates?

[74] The focus of the submissions was whether the RCF Agreement permits ad hoc variations to the days of the week on which a part-time employee works, in circumstances where the those days were not agreed as part of the part-time employee’s pattern of work upon engagement, pursuant to clause 2.1(b)(iii) of the RCF Agreement, so that the part-time employee can work a shift – termed by RCF as an “ad hoc shift”) on a day of the week that was not part of that pattern. A related issue is whether an ad hoc change is an agreed variation to the pattern of work required to be established in clause 2.1(b)(iii) of the RCF Agreement.

[75] The example that RCF utilised to illustrate the nature of the variation to hours that it seeks to implement by way of its construction of the RCF Agreement is a part time employee agreeing to work a shift to replace another employee who is unable to work the shift for reasons such as illness. Essentially, RCF’s construction is that an agreement by a part-time employee to work a shift on a day when that part-time employee would not have been rostered in accordance with his or her current work pattern, constitutes an agreed variation to that work pattern, resulting in a new agreed work pattern, so that the part-time employee concerned is not entitled to overtime payments until he or she has worked 38 hours (including the additional shift) in the particular week. RCF’s proposition is that such a variation is permitted by the RCF Agreement. The effect of RCF’s construction is that such variations can be implemented by agreement, on a day-to-day basis.

[76] The starting point is the definition of part-time employment found in clause 2.1(b) of the RCF Agreement. Relevantly, that clause provides that a part time employee is a permanent employee who:

•  enters into an agreement to work less than 38 hours per week;

•  is rostered for a minimum of four hours each day the employee is required to work;

•  will be rostered to work a minimum of 15 hours per week unless mutually agreed in writing between the employee and RCF; and

•  at the time of the engagement, agrees in writing on a regular pattern of work, hours worked each day, days of the week the employee will work and start and finish times each day (subject to timetable changes).

[77] It is immediately apparent that the definition of part-time employment in clause 2.1(b)(iii) does not provide for a part-time employee to work 38 ordinary hours per week. A part-time employee is an employee who enters into an agreement to work less than 38 ordinary hours per week. Further, the RCF Agreement does not provide for the hours of part-time employees to be averaged over a period of more than one week. While there is an apparent inconsistency between clause 2.1(b)(iii) and clause 4.1(c) which provides that ordinary hours for a part-time employee will be “no more than 38 hours per week” an agreement for a part-time employee to work a regular pattern involving 38 hours ordinary hours each week would not meet the requirements in clause 2.1(b)(iii). I also note that the RCF Agreement is restrictive in terms of the ordinary hours of full time employees being averaged over periods of more than on week and only provides for this in respect of employees at Levels 3 and 4.

[78] Clause 2.1(b)(iii) requires that a part time employee is “rostered” to work the employee’s weekly hours. The term “rostered” relates to a person being allocated to a roster. A “roster” is a list or plan showing turns of duty for individuals or groups. I accept that a roster can operate by referring to the name of a particular employee who will work a particular shift. In a practical sense, it is common that a roster is described as pertaining to a particular employee, in terms of the roster being the employee’s roster. For an employee allocated to a roster, that is the practical effect. However, a roster exists independently of the persons who are “rostered” to work in accordance with the roster. While this may be a fine distinction, it is important that the two concepts of a “roster” and an employee being allocated or “rostered” to work in accordance with a roster, are not conflated, particularly when the terms of an industrial instrument are being construed. In the context of clause 2.1(b)(iii), the use of the term “rostered” is consistent with the other provisions of the clause and the RCF Agreement as a whole and means the part-time employee being allocated to an existing roster, notwithstanding that the part time employee concerned has not previously been rostered to work on the day in question.

[79] Clause 2.1(b)(iii) requires an agreement in writing between RCF and a part-time employee which encompasses all listed matters: a regular pattern of work; hours worked each day; days of the week the employee will work; and start and finish times each day. The term “regular” is used as an adjective in the clause and its plain meaning is that the work is arranged in a constant or definite pattern. This is emphasised by the term “pattern” in conjunction with “regular” and preceding the term “work”. The meaning of “pattern” is a regular form or sequence. An agreement with a part-time employee would not be compliant with the requirements in clause 2.1(b)(iii) if it provided for a pattern of start and finish times only and the hours to be worked on any day that work is performed but did not stipulate the days of the week on which work would be performed.

[80] This is emphasised by the one exception of timetable changes, which appears after the reference to “start and finish times each day”. Plainly, this exception relates to and allows for alterations to start and finish times of shifts on a day-to-day basis to reflect timetable changes, which will not result in a different pattern of work being established. It is probable that timetable changes would not involve significant alterations to start and finish times and this flexibility is entirely consistent with the fact that the work performed under the RCF Agreement involves the provision of passenger transport.

[81] The existence of timetable changes as a single exception to the requirements in the clause, indicates that there are no other exceptions. In my view, it is axiomatic that to comply with the requirements of the clause, a regular pattern of work must at very least, be established prior to the week in which the pattern will be worked by the employee and sufficiently in advance so that it is a pattern rather than a series of ad hoc or random changes day-to-day or week-to-week. It is arguable that the pattern would be required to be established for the duration of the roster cycle, which is three weeks.

[82] Further, any variation to the regular pattern of work required by clause 2.1(iii)(b) must also be a regular pattern of work which meets the requirements in that sub-clause. It is not necessary that I determine the minimum period over which a pattern of work will be required to be established before it is a regular pattern which meets those requirements. However, for present purposes, it is difficult to imagine circumstances where a part-time employee working an ad hoc shift to replace an employee who has not reported for work, could constitute a variation to a regular pattern of work, that is itself a regular pattern of work.

[83] Accordingly, the plain language of the clause is contrary to the proposition that the hours to be worked each day, days of the week the employee will work and start and finish times each day can be altered on an ad hoc basis by the employee agreeing to work a shift in the kinds of circumstances described in the RCF submissions. While it would not be inconsistent with the clause for the employer and the employee to agree on a variation to the agreed pattern of work for a specified period – for example a roster cycle – which establishes a different pattern of work that meets the requirements of clause 2.1(b)(ii), I do not accept that the clause allows such an agreement to be made on a random, ad hoc or one-off basis.

[84] It is then necessary to consider other clauses of the RCF Agreement and whether they contradict the plain language of clause 2.1(b)(ii) or operate to allow for ad hoc changes to the agreed pattern of work to be entered into as proposed by RCF. I first consider clause 4.1 which provides for ordinary hours of work for part-time employees. By virtue of that clause, ordinary hours for part-time employees shall be worked on a “roster” any day between Monday to Sunday inclusive, with a minimum engagement of four hours each day the employee is required to work.

[85] There is nothing in clause 4.1 of the RCF Agreement to suggest that part-time employees can be “rostered” in a way that is inconsistent with the requirements in clause 2.1(b)(iii) – a regular pattern of work based on a written agreement in relation to the hours to be worked each day, the days of the week on which they will be worked and the times that the employee is required to start and finish work. I do not accept that the inclusion of an employee’s name in a roster to replace another employee who is absent, changes the roster. Rather, it changes the working hours of the employee who is now rostered to work at a time or on a day when the employee was not previously rostered to work. Thus, if an employee whose name is included on the roster to work a particular shift, is ill or otherwise unable to attend work, the substitution of another employee for the absent employee, does not change the roster. Rather, it changes the hours of work of the substitute employee. As a result, a part-time employee in those circumstances has not agreed to change his or her regular pattern of work, hours worked each day, days of the week on which the employee will work and start and finishing times each day. Neither has the part-time employee agreed to change the total number of ordinary hours to be worked in a week, in accordance with the agreed pattern.

[86] The provisions of the RCF Agreement relating to changes to rosters are found in clause 4.4. A change for a permanent employee to another shift requires 12 hours’ notice and notice required for a roster change is three weeks by virtue of clause 4.4(g). That clause goes on to state that the three weeks’ notice does not apply in the case of shift changes required operationally on an ad hoc basis. Amendments to rosters on an ad hoc basis are dealt with in clause 4.4(n) which provides that such amendments may be made to meet any operational requirement, including special events, charters, training and additional services provided under the Brisbane City Council Contract. Clause 4.4(g) also permits roster changes where the Brisbane City Council make changes that will impact the delivery of service and changes the timetable. In such cases there are requirements such as RCF using its best endeavours to maximise numbers of days off in the new roster and to consult.

[87] Clause 4.4(n) provides for two kinds of roster changes – ad hoc and ongoing. What is clear is that the changes are to the roster and in the case of ad hoc changes, new shifts or amendments to the starting times of shifts are implemented on a one-off basis for particular events or charters or similar. For example, a sporting, cultural or community event, may result in the Brisbane City Council wishing to provide additional services for customers so that additional shifts are added to the roster for members of the public traveling to and from that particular event. It is the shift that is ad hoc rather than the requirement for a particular employee to work on that shift. Further, clause 4.4(n) does not deal with the payments that employees are entitled to for working such shifts. The limited application of clause 4.4(n) is consistent with clause 4.4(g) which provides that ad hoc shift changes do not require the notice that is specified to change the roster.

[88] I do not accept that there is any support in clause 4.4(n) for the construction contended for by RCF. That clause encompasses changes to the roster by the ad hoc addition of a shift that is not already in the roster or by a change to the roster that is ongoing. In circumstances where a part-time employee replaces another absent employee on a shift, the shift is not ad hoc but rather, is already rostered in accordance with an existing roster. Unless the arrangement under which the work is undertaken is a change to the regular pattern of work agreed in accordance with clause 2.1(b)(iii) – which for reasons set out above cannot be constituted by an ad hoc change – the replacement employee is working outside of or in addition to the parameters of that employee’s agreed pattern of work.

[89] I do not rule out that if a part-time employee is offered a shift on day that is not part of that employee’s regular pattern of work, and the shift is offered for the purposes of replacing another employee who is usually rostered to work that shift but is on an extended absence (for example long service leave or workers’ compensation) the agreement by a part time employee to work that shift for the relevant period, may be capable of constituting a new agreement on a regular pattern of work pursuant to clause 2.1(b)(iii) for the part-time employee who replaces the absent employee. However, where an employee works a one-off shift to replace an absent employee, the agreement to do so is not an agreement on a regular pattern of work for the purposes of clause 2.1(b)(iii). The case presented by RCF relates to one off shifts and it is not necessary that I deal with other scenarios.

[90] I do not accept that clause 4.2 of the RCF Agreement operates in the manner contended by RCF. That clause defines overtime as “All time worked outside or in excess of the already rostered working hours per day and as referenced in clause 4.1(a) – (d)” (emphasis added). Clause 4.1(c) provides that ordinary hours for part-time employees will be no less than 15 hours per week and no more than 38 and that such hours “shall be worked on a roster”. The requirement that hours for part-time employees are to be worked on a roster combined with the provisions in clause 2.1(b)(iii), make clear that the RCF Agreement does not permit ordinary hours for part-time employees to be flexed up and down on an ad hoc basis.

[91] In order to identify whether hours are outside or in excess of already rostered working hours per day for the purposes of clause 4.2(a) it is necessary to read clause 4.1(c) in conjunction with clause 2.1(b)(iii). If the clauses of the RCF Agreement are not read in this way, the more general provision in clause 4.1(c) would derogate from the specific provision in clause 2.1(b)(iii). This would also impact on clause 4.2(a) by limiting overtime for part time employees, to time that falls within the description in clause 4.1(c). Given that clause 4.1(c) does not describe the full parameters of ordinary hours for part time employees, to read that clause as operating independently of clause 2.1(b)(iii) would be contrary to the principles of construction. Accordingly, if hours worked on particular day are not included in the regular pattern of hours agreed pursuant to clause 2.1(b)(iii) read in conjunction with clause 4.1(c), then by virtue of clause 4.2(a) those hours are overtime hours and must be paid accordingly. This is so whether the hours are worked continuously with hours that are included in the agreed regular pattern of hours or whether they are worked on a day when there are no hours which are part of the agreed regular pattern.

[92] The reference to “already rostered ordinary working hours per day” does not assist RCF’s proposed construction given that overtime is time worked outside or in excess of such hours. A part-time employee is entitled to overtime payments in either case. A part-time employee’s agreed regular pattern of work encompassing hours worked each day, days of the week the employee will work and start and finish times each day establishes that employee’s ordinary working hours. A shift that is already in the roster but upon which a part-time employee is not usually rostered, cannot be part of the ordinary working hours established by reference to an agreed regular pattern of work, in circumstances where the context in which the shift is worked is a random occurrence, such as replacing another employee advising of an absence from work on a one-off basis.

[93] There is no basis for the distinction contended for by RCF, between hours worked in excess of those worked on a shift where the employee is rostered in accordance with an agreed regular pattern of work and hours worked on a day where the employee was not rostered but agreed to work a shift. In the first case, the hours are in excess of already rostered hours. In the second case, the additional shift is outside already rostered hours because (again for reasons set out above) the shift is not part of the agreed regular pattern of work of that part time employee.

[94] If RCF’s construction is correct, technically, it could, prior to a part time employee starting work on a day when the employee was already rostered, ask the part-time employee to agree to work additional hours extending beyond the employee’s shift. Taking RCF’s construction to its logical conclusion, if the agreed pattern of work can be changed on an ad hoc basis without the need for the change to be an agreed pattern or if such a change establishes a new pattern, the hours in question would be treated in the same way regardless of how they were worked. Further, and for the reasons set out above, while the shift described by RCF may be ad hoc for the part-time employee, it is not an ad hoc shift as contemplated by clause 4.4(n) of the RCF Agreement and as previously noted, the provisions of that clause do not deal with the payments that employees are entitled to for working such shifts.

[95] The requirement that each day stands alone reflects the fact that for most employees (other than the limited categories of employees who can have ordinary hours averaged) overtime on be calculated on a daily basis. Where a part-time employee is working pursuant to an agreed regular pattern of work which does not provide for work on a particular day, and that employee works a shift on that day, that shift “stands alone” and is paid for at overtime rates because it is a shift that is outside the ordinary hours for that part-time employee. Where the part-time employee is rostered to work ordinary hours on a particular shift and works in excess of those hours, they also stand alone and are paid for at overtime rates.

[96] Clause 4.4(m) is a further contextual indication that the construction advanced by RCF should not be accepted. That clause deals with casual employees and provides that:

•  Casual employees are expected to make themselves available to assist with coverage of short notice staff absences on a regular basis and are mainly employed for this purpose;

•  Where casual employees are unavailable on either a permanent or ad hoc basis, they are required to fill in a casual unavailability form and submit it to operations prior to the scheduling roster being posted for that week;

•  If a casual unavailability form has not been submitted there is an expectation that casual employees will be available when called for a shift as much as reasonably practical; and

•  If a casual staff member consistently refuses more than three shifts in a four week period without having submitted a casual unavailability form, they may be required to attend a meeting with the Operations Manager to discuss the situation further.

[97] This clause tells against a construction of the RCF Agreement which allows for the agreed regular work pattern of part-time employees to be varied on an ad hoc basis to allow them to do work of the kind which is expressly said to be the main purpose for the engagement of casual employees.

[98] Finally, as a contextual matter, I consider the provisions of the Award which formed the basis of consideration of whether the RCF Agreement passed the better off overall test (BOOT). Clause 10.5 of the Award provides that at the time of engagement, the employer and the part time employee will agree in writing on a regular pattern of work; the days of the week the employee will work and the actual starting and finishing times each day. Clause 10.6 requires that any agreed variation to the regular pattern of work is recorded in writing. By virtue of clause 10.7 an employer is required to roster a regular part time employee for a minimum of two consecutive hours on any shift. Clause 10.8 provides that all time worked in excess of the hours as mutually agreed will be overtime.

[99] The provisions of clause 2.1(b)(iii) of the RCF Agreement are consistent with those in the Award in relation to the content of an agreed regular pattern of work, except that the RCF Agreement requires the agreed regular pattern to also state the hours worked each day in addition to the starting and finishing times although this is not a substantive difference. Both the Agreement and the Award provide for the agreed regular pattern of hours to be in writing.

[100] In relation to overtime and when it is payable, the RCF Agreement provides that all time worked outside or in excess of the already rostered ordinary working hours per day as provided for in the hours of work provisions in clause 4(a) – (c), read in conjunction with clause 2.1(b)(iii) is overtime. The practical effect is the same as that of clause 10.8 of the Award which provides that overtime for part time employees is all time worked in excess of the hours as mutually agreed. The difference in expression is likely as a result of different hours of work provisions whereby the Award provides for 8 hour days Monday to Friday for non-shift workers. I accept the submission of the Unions that if the RCF Agreement changed the basis of ordinary time and overtime to the degree contended for by RCF, than it would be expected that this would have been addressed as a clause less beneficial than the Award in the Form F17 filed by RCF when the Agreement was approved.

Conclusion and Recommendation

[101] For these reasons, I issued a Recommendation that if the employer offers a part-time employee an additional shift in respect of which the employee had not previously been rostered as part of their usual work pattern and the employee agrees to undertake that shift, and it is an ad hoc shift on a day that the employee has not previously been rostered, that extra agreed shift is payable at overtime rates.

DEPUTY PRESIDENT

Appearances:

Ms T Ellis for the AMOU.

Mr A Neal of Counsel for the CFMMEU.

Mr A Herbert of Counsel for RCF.

Hearing details:

21 July.

2021.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR735626>

 1   Transcript PN45.

 2    [2017] FWCFB 3005 at [14].

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 37    [2017] FWCFB 3005 at [14].