Australian Municipal, Administrative, Clerical and Services Union v Ballarat City Council

[2024] FWC 1694

[2024] FWC 1694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union
v

Ballarat City Council

(C2023/6776)

COMMISSIONER TRAN MELBOURNE, 27 JUNE 2024

Application to deal with a dispute under an enterprise agreement – payment of weekend penalty rates for part-time and casual employees

1. On 6 November 2023 the Australian Municipal, Administrative, Clerical and Services Union (ASU/the Applicant) applied for the Commission to deal with a dispute under s 739 of the Fair Work Act 2009 (the Act) and in accordance with Clause 24 – dispute resolution and settlement procedure of the Ballarat City Council Enterprise Agreement No 8 2019 (the Agreement).

1. The Respondent is Ballarat City Council.

1. The dispute is about whether part-time and casual employees who work at Ballarat Art Gallery should be paid weekend penalty rates. The dispute started when Ms Smith, ASU member and Visitor Experience Officer, asked whether she – as a part-time employee – and casual employees were entitled to receive applicable weekend penalty rates, referring to Schedule 1, Clause 1.3 of the Agreement. When Ms McCarthy, ASU organiser, escalated the dispute, it was framed as why weekend penalty rates were not being paid to part-time Gallery staff.

1. The parties did not agree on the question for determination. So, on 12 June 2024, I consulted with the parties, and both agreed that the following question would resolve the dispute:

Under the Agreement, what rates of pay are to be paid to casual and part-time employees of Ballarat City Council working as Visitor Services Officers (also known as Visitor Experience Officers) and as Art Gallery Staff at Ballarat Art Gallery for hours worked on a Saturday or Sunday?

1. In interpreting the relevant clauses of the Agreement, I reached the conclusion that:

-     Employees of the Council who are engaged on a part-time basis as employees of the Art Gallery and as Visitor Services/Experience Officers are entitled to a payment for hours worked on Saturdays and Sundays at the penalty rate of 1.5 times the rate for ordinary hours.

-     Employees of the Council who are engaged on a casual basis as employees of the Art Gallery and as Visitor Services/Experience Officers are entitled to a payment for hours worked on Saturdays and Sundays at the ordinary hour rate plus 25% loading.

-     If employees of the Council who are engaged as employees of the Art Gallery and as Visitor Services/Experience Officers (whether on a part-time or casual basis) work hours in excess of their rostered weekend hours, Clause 1.8 of Appendix 6, Schedule 1 requires that they are paid the overtime rates of pay, which can be found in Clause 47 of the main body of the Agreement.

-     For employees of the Council who are engaged as Visitor Services/Experience Officers, where changes to rostered hours of work result in an increase in weekly hours, Clause 1.5 of Appendix 6, Schedule 1 requires that they are paid the overtime rates of pay, which can be found in Clause 47 of the main body of the Agreement.

1. My detailed reasons follow.

Jurisdiction

1. Section 595 of the Act provides for the Commission’s power to deal with disputes only if it is expressly authorised to do so or in accordance with another provision of the Act. Section 739 provides for the Commission’s power to deal with a dispute if an enterprise agreement includes a term that provides a procedure for dealing with disputes under s 738(b).

1. The Agreement contains a dispute resolution and settlement procedure in Clause 24. Clause 24.6.2 of the Agreement gives the Commission power to arbitrate the dispute and in doing so, use the powers available to it under the Act.

1. It is not in dispute between the parties and I am satisfied, based on the evidence provided by Ms McCarthy, ASU Organiser, and Mr Prestage, Executive Manager People and Culture, that the Agreement’s dispute resolution and settlement procedure has been followed and that this dispute was properly referred to the Commission under Clause 24.6 of that Agreement.

Materials relied upon

1. I conducted a conference on 27 November 2023 but was unable to assist the parties to achieve a resolution, so the ASU requested that the matter be arbitrated. The parties filed materials per directions issued by me and agreed that it was appropriate for the matter to be dealt with on the papers without a hearing.

1. The ASU relies upon the following materials:

-Outline of submissions dated 13 February 2024;

-Reply submissions dated 19 March 2024;

-Witness statement of Angela McCarthy, ASU Organiser, dated 13 February 2024; and

-Witness statement of Jordyn Smith, Visitor Experience Officer, dated 19 March 2024.

1. Ballarat City Council relies upon the following materials:

-Outline of submissions dated 12 March 2024; and

-Witness statement of Andrew Prestage, Executive Manager People and Culture, dated 12 March 2024.

Relevant provisions of the Agreement

1. The Agreement was approved by the Commission on 15 April 2020.[1] It operated from 22 April 2020 and its nominal expiry date is 30 September 2023.

1. The clauses of the Agreement that are relevant to this dispute are:

-Clause 47 – Overtime and Time in Lieu; and

-Appendix 6, Schedule 1, specifically:

oClause 1.3, 1.5, 1.6, 1.8 and 2.

1. I do not include the entirety of the Clause 47, which details restrictions on requests to work overtime, when payments for overtime work will be made, including the rates payable, conditions relating to time in lieu and recall to work.

1. I include the entirety of the clauses from Appendix 6, Schedule 1 that have informed my textual analysis and interpretation at the end of this decision.

Principles of Interpretation are well settled

1. The principles of interpretation of enterprise agreements are well settled and have been recently and comprehensively set out by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) (188V) v Berri Limited[2] and by the Full Court of the Federal Court in Workpac Pty Ltd v Skene.[3] I do not repeat them here.

Do the relevant clauses have a plain meaning?

1. The first task is to determine whether an agreement has a plain meaning, or whether it is ambiguous or susceptible to more than one meaning.[4]

What the parties say about whether there is a plain meaning

1. The evidence of the Respondent is that there are employees who are Visitor Services Officers (now also known as Visitor Experience Officers) who may work at locations other than the Art Gallery. The Respondent submits that Visitor Services/Experience Officers are a separate category of employees to Art Gallery employees, even though both work in the Art Gallery. The Respondent submits that Appendix 6, Schedule 1 contains clauses that are distinct and separate, and which only apply to one employee group.

1. In relation to Art Gallery employees, the Respondent argues that the words of Clause 1.3 are ambiguous and susceptible to more than one meaning, and as a result, I must have regard to surrounding circumstances to interpret the Agreement. The Respondent says that the ambiguity arises due to Clause 1.3 not containing specific penalty rates within itself and that in Clause 47.1 of the main body of the Agreement, there is a conflation of overtime and penalty rates. The Respondent further says that the purpose of Clause 1.3 in Appendix 6, Schedule 1 is unclear. In relation to Visitor Services/Experience Officers, the Respondent says that there is no reference to these employees being entitled to penalty rates and so, none applies.

1. The Applicant submits that the plain meaning of the relevant clauses in Appendix 6, Schedule 1 means that part time and casual employees employed in the Art Gallery should be paid penalty rates. The Applicant does not appear to make a distinction between Visitor Services/Experience Officers and Art Gallery employees who are not Visitor Services/Experience Officers. Schedule 1 in its preamble sets out its application to Art Gallery employees and Clause 1.3 state that “hours worked on Saturday and Sunday will be paid at the applicable penalty rates.” The Applicant further submits that this plain meaning is not inconsistent with any other part of the Agreement.

My conclusion about whether the relevant clauses have a plain meaning

1. The relevant clauses do not clearly set out what the penalty rates are and there is repetition and conflation of the terms ‘penalty rates’ and ‘overtime’ throughout Appendix 6, Schedule 1 and in Clause 47.1. But the ordinary meaning of the words, understood in their industrial context, bearing in mind the industrial realities and peculiarities of agreement negotiation and drafting, do reveal a plain meaning.[5]

1. Schedule 1 is one of 10 schedules in Appendix 6 that provide for specific terms that apply to particular employee groups, whereas the main body of the Agreement provides for general terms that apply to all employees who are covered by the Agreement. The terms of a schedule prevail over the main body of the Agreement, where there is any inconsistency. The words of Appendix 6 are clear on this point:

“The Schedules contained in Appendix 6 apply to those Employees listed in each Schedule. In the event of any inconsistency between such a Schedule and the main body of this Agreement, the terms contained in the Schedule shall prevail to the extent that the inconsistency applies to the Employees listed in that Schedule.”

Schedule 1 does not deal specifically with Part-time and Casual Employees

1. Schedule 1 does not have specific provisions for part-time or casual employees. I therefore interpret that Clause 11.2 – Part-time Employment and Clause 11.4 – Casual Employment contained in the main body of the Agreement provide for relevant conditions for part-time and casual employees who are Art Gallery staff and Visitor Services /Experience Officers. So, part-time employees are entitled to the benefits of the Agreement on a pro-rata basis according to the number of hours worked (Clause 11.2.3) and casual employees must receive a payment of an additional 25% of the appropriate ordinary rate (Clause 11.4.2).

Schedule 1 deals separately with different employee groups

1. Schedule 1 applies in relation to employees who are affected by the subject of this dispute – Art Gallery and Visitor Services/Experience Officers. Schedule 1 of Appendix 6 is titled ‘Schedule 1 – 7 Day Staff’ and provides:

“This Schedule shall apply only to Employees engaged as Events Officers, Visitor Services Officers and Employees of the Art Gallery and Her Majesty’s Theatre.”

1. Schedule 1 has clauses that apply generally across these 4 listed employee groups (Clauses 2, 3, 4 and 5). There are clauses that are specific to only Art Gallery employees (Clause 1.3); only Visitor Services Officers (Clause 1.5, perhaps 1.6 – discussed further below – and 1.7), only Event Offices (1.4) and only Her Majesty’s Theatre employees (Clause 6). There are clauses that relate to both Art Gallery employees and Visitor Services Officers (Clause 1.8 and perhaps also 1.6 – discussed further below).

1. I have interpreted the relevant clauses on the basis that there are 2 distinct work groups – that is Visitor Services/Experience Officers and Art Gallery employees who are not Visitor Services/Experience Officers – because they are separately treated in Schedule 1, although there is also an overlap in Clause 1.6. Schedule 1 does distinguish between Visitor Services/Experience Officers and Art Gallery employees, and I must therefore deal with them separately. 

Further reasons to not have regard to surrounding circumstances

1. As I have found that there is a plain meaning, I do not need to consider surrounding circumstances. But I do not have regard to surrounding circumstances for 2 further reasons. First, I was not provided with evidence of any surrounding circumstances that supported a finding of ambiguity in the relevant clauses of the Agreement. Second, I was not taken to any surrounding circumstances that would assist me to interpret the relevant clauses.

1. The Respondent referred me to prior enterprise agreement negotiations. Schedule 1 appears to have first been inserted into the 2010 Agreement and remained throughout the next 3 Agreements (2013, 2016 and the current Agreement). The evidence of Mr Prestage is that he reviewed logs of claim and documents relating to agreement negotiations but could not locate any documents that were specific to or clearly outlined the intention behind reference to penalty rates in Clause 1.3.

1. This unchallenged evidence is not information about anything relevant to my task of interpretation. That Mr Prestage could not locate information which dealt with the relevant clause is not evidence of its ambiguity. Further, evidence of negotiations is relevant where it demonstrates what employees were told was the intended meaning of a clause, not what parties’ bargaining positions or claims may have been.[6] I do not have any evidence of that nature before me.

My task to interpret the Agreement and not to re-write or introduce clauses

1. Both parties specifically discussed Principle 2 in AMWU v Berri:[7]

“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.”

1. My analysis below is text-based, focusing on the language of the Agreement itself[8] but avoiding an overly technical approach to achieve a sensible, practical industrial result.[9]

Do penalty rates apply?

1. The Respondent submits that if it had been intended that penalty rates apply, then these would have been specifically included, as provided at Clause 6 of Appendix 6, Schedule 1 in relation to Her Majesty’s Theatre employees.

1. Clause 6 of Appendix 6, Schedule 1 applying to Her Majesty’s Theatre employees does specifies overtime / penalty rates in Clause 6.2. I do not consider that this means that the clauses applying to Art Gallery and Visitor Services/Experience Officers would have been drafted in the same manner. Agreements are drafted through a process of bargaining and negotiation. Particularly where agreements have long histories, clauses may remain without re-drafting while additional and more clearly drafted clauses are added.[10] All of Clause 6 appears much more clearly drafted than other clauses in Appendix 6, Schedule 1.

1. The Respondent also submits that the industrial context of the Agreement implies that employees engaged in community services would not be entitled to penalty rates when working on weekends between the hours of 5:00am and 10:00pm. The Respondent submits this context is underpinned by Clauses 19.2 and 21.3 of the Victorian Local Government Award 2015. The Respondent says that Art Gallery employees would be ‘community services’ employees under the Award. The Respondent submits that ordinary hours, which are defined in Clause 1.3 of Schedule 1 as being within a spread of 7:00am to 7:00pm Monday to Sunday, are inconsistent with the concept of penalty rates.

1. The Applicant submits in reply that the underpinning award – the Victorian Local Government Award 2015 – has the same formulation as Clause 1.3 where it sets out at Clause 19.2(b) that the spread of ordinary hours are within a time span on Monday to Sunday and that penalty rates apply for ordinary hours worked on weekends. The Applicant notes that an exclusion of certain employees from penalty rates in Clause 21.3 indicates that the employees affected by this dispute would be excluded from receiving penalty rates if the underpinning Award applied to them.

What applies for Art Gallery employees?

1. Clause 1.3 clearly states that “Hours worked on Saturday and Sunday will be paid at the applicable penalty rates.” This is plain in its meaning, except that it is not clear what the applicable penalty rates are.

1. The Respondent’s submissions require that I disregard the clear words of Clause 1.3, but this is contrary to the general principle of interpretation that all words in an enterprise agreement must be given some work to do.[11]

1. I agree with the Applicant’s submissions that the clear words of Clause 1.3 must mean that employees in the Art Gallery should be paid penalty rates. Employees must include part-time and casual employees, as these employment categories are provided for in the main body of the Agreement.

1. In relation to Art Gallery employees, the Respondent says that while Clause 1.3 does make a reference to penalty rates, no applicable provision in the Agreement provides for penalty rates, so there is no entitlement to penalty rates on ordinary hours worked on weekend days. The Respondent submits that, by operation of Clause 2 of Schedule 1, Clause 47 in the main body of the Agreement does not apply and so the rates in that Clause, which in any event relate to overtime and not penalty hours, cannot be used.

1. In respect of weekend hours that form part of ordinary hours, I am of the view that the applicable penalty rate is not that found in Clause 47, but found in Appendix 6, Schedule 1 itself. Clause 1.8 of Appendix 6, Schedule 1 provides for Weekend Work – Visitor Services/Experience Officers and Art Gallery Staff and references annualised salaries for full-time employees who are Visitor Services/Experience Officers and Art Gallery Staff as being predicated on a number of weekend days. An example is provided of an annualised salary calculation for Visitor Services/Experience Officers at Clause 1.6, but no example is provided of an annualised salary calculation for Art Gallery employees. However, the table itself is headed ‘Gallery Centre Visitor Services Staff’.

1. I am of the view that when read in context, and taking a purposive, rather than a narrow or pedantic approach,[12] that the example provided in the table under Clause 1.6 applies equally to Art Gallery employees and Visitor Services/Experience Officers, noting the reference in Clause 1.8 and the table heading. I therefore am of the view that the relevant penalty rate is a 1.5 multiplier of the ordinary hours rate.

What applies for Visitor Services/Experience Officers?

1. In relation to Visitor Services/Experience Officers, the Applicant points to the example of an annualised salary for full-time staff, provided at Clause 1.6 of Appendix 6, Schedule 1 of the Agreement, which incorporates penalty rates, in support of its argument that part-time and casual employees should be paid penalty rates on ordinary hours worked on weekend days. The Respondent says that Clause 1.5 makes no reference to penalty rates for hours worked on Saturdays and Sundays.

1. I am of the view that, for employees who are Visitor Services/Experience Officers, Clauses 1.5, 1.6 and 1.8 of Appendix 6, Schedule 1 when read together with Clause 11.2.3 provide for the relevant entitlement and rates of pay. This is because Clause 1.5 sets out the ordinary hours of work for a full-time Visitor Services/Experience Officer where the spread of hours is from 7:00am to 7:00pm Monday to Sunday. Clause 1.6 provides an example of an annualised salary, and Clause 1.8 makes clear that the annualised salary example is predicated on a number of weekend days being worked.

1. In the example calculation provided at Clause 1.6, weekend hours are referred to as penalty hours and overtime hours, but the calculation is clear that they are the same. This is because in the first row, the number of weekend hours to be worked across an entire year is calculated as 437.76 hours. This number is then repeated in the next table but referred to as ‘penalty hours 1.5’. In the table where figures are calculated, the row labelled ‘Overtime Hours 1.5’ is a calculation of 1.5 x 437.76 x the hourly rate in each column.

1. As a part-time employee is entitled to the benefits of the Agreement on a pro-rata basis under Clause 11.2, the example provided for the calculation of an annualised salary for a full-time employee, inclusive of a 1.5 multiplier for weekend hours, must provide for the relevant multiplier for part-time employees working on weekends.

What about overtime hours?

1. Clauses in Appendix 6, Schedule 1 make it clear that where employees work hours in excess of their rostered weekend hours (Clause 1.8 which applies to both Art Gallery employees and Visitor Services/Experience Officers) or where changes to rostered hours of work result in an increase in weekly hours (Clause 1.5 which applies to only Visitor Services/Experience Officers), overtime rates will apply. But again, there are no rates expressly provided in Appendix 6, Schedule 1.

1. The Respondent says that none apply because of Clause 2 of Appendix 6, Schedule 1, which provides:

“2 Clauses that do not apply

Except as otherwise indicated, the following Clauses do not apply to Employees covered by Appendix 6 Schedule 1:

47 Overtime and Time in Lieu;
27 Allowances (including availability allowance);
36.14 Annual leave loading;
54 Worksite location.”

1. If I were to accept the Respondent’s submissions, I would not be giving any effect to the plain meaning in Clauses 1.5 and 1.8 that certain hours (changed rostered hours that result in an increase in weekly hours or hours worked in excess of rostered hours) are overtime hours payable at overtime rates of pay. I consider that the words “except as otherwise indicated” do allow for the extrapolation of the rates table in Clause 47 – Overtime and Time in Lieu despite Clause 2 of Appendix 6, Schedule 1.

What applies for casual Visitor Services/Experience Officers and Art Gallery employees?

1. For casual employees, I am of the view that there is nothing in the schedule that prevails over Clause 11.3 in the main body of the Agreement and therefore employees who are employed on a casual basis as Visitor Services/Experience Officers and Art Gallery staff are entitled to a payment of the ordinary hours rate together with a 25% loading as provided by Clause 11.3.

Answer to the question for determination

1. I therefore answer the question for determination as follows:

-     Employees of the Council who are engaged on a part-time basis as employees of the Art Gallery and as Visitor Services/Experience Officers are entitled to a payment for ordinary hours worked on Saturdays and Sundays at the penalty rate of 1.5 times the rate for ordinary hours.

-     Employees of the Council who are engaged on a casual basis as employees of the Art Gallery and as Visitor Services/Experience Officers are entitled to a payment for hours worked on Saturdays and Sundays at the ordinary hour rate plus 25% loading.

-     If employees of the Council who are engaged as employees of the Art Gallery and as Visitor Services/Experience Officers (whether on a part-time or casual basis) work hours in excess of their rostered weekend hours, Clause 1.8 of Appendix 6, Schedule 1 requires that they are paid the overtime rates of pay, which can be found in Clause 47 of the main body of the Agreement.

-     For employees of the Council who are engaged as Visitor Services/Experience Officers, where changes to rostered hours of work result in an increase in weekly hours, Clause 1.5 of Appendix 6, Schedule 1 requires that they are paid the overtime rates of pay, which can be found in Clause 47 of the main body of the Agreement.

COMMISSIONER

Final written submissions:

19 March 2024.

APPENDIX

Relevant clauses of the Ballarat City Council Enterprise Agreement No 8 2019

Appendix 6, Schedule 1

1.3     Art Gallery

The ordinary hours of work for full-time Employees of the Art Gallery will be 38 hours per week. For all Employees of the Art Gallery, the spread of ordinary hours will be between the hours of 7.00am to 7.00pm Monday to Sunday.

Hours worked on Saturday and Sunday will be paid at the applicable penalty rates.

At the time of engagement, the Employee and their Supervisor/ Manager will agree in writing on a regular pattern of work, which shall specify the hours and days to be worked by the Employee per week.

Any request from the Employee to vary the regular pattern of work will be required to be submitted in writing to the Supervisor/ Manager with at least two weeks' notice of the requested change.  The Supervisor/ Manager will assess the request giving consideration to the Employee's personal requirements and business needs of Council.  Any agreed variation will be recorded in writing.

In circumstances of unexpected staff absences or a change in Council's business needs, the Employer may change an Employee's regular hours of work on a temporary basis.  If this occurs, a minimum period of twelve (12) hours' notice will be given to the Employee of the temporary change to the Employee's scheduled time of work.

Appendix 6, Schedule 1

1.5     Visitor Services Officers

The ordinary hours of work for full-time Employees employed as Visitor Services Officers is 38 hours per week worked in accordance with an agreed roster between the hours of 7.00am to 7.00pm Monday to Sunday (this includes 7.6 ordinary hours per day). Staff will work across a rotational roster.

Rosters will be scheduled for 12 months at a time.   Employees may, given consideration to business needs and approval from their Supervisor/ Co-ordinator, swap a scheduled shift with another Employee.

In circumstances of unexpected staff absences, an Employee will be advised in advance of the change with a minimum period of twelve (12) hours' notice or such lesser period by mutual agreement, on the temporary change to an Employee's rostered hours of work. If this change results in an increase in weekly hours, applicable overtime rates will apply.

In circumstances of a change in business needs, an Employee will be advised in advance of the change with a minimum period of forty-eight (48) hours' notice or such lesser period by mutual agreement, on the temporary change to an Employee's rostered hours of work. If this change results in an increase in weekly hours, applicable overtime rates will apply.

Appendix 6, Schedule 1

1.6     Annualised Salary - Visitor Services Staff

Each full-time Employee engaged as a Visitor Services Officer in the Visitor Services Unit in accordance with Appendix 6, Schedule 1, Clause 1.5, will be paid an annualised salary which includes leave loading.

Appendix 6, Schedule 1

1.8     Weekend Work - Visitor Services Officers and Art Gallery Staff

Annualised salaries for Visitor Services Officers and Art Gallery Staff are predicated on a number of weekend days (Saturday and Sunday constitute a weekend) being worked. If Employees work in excess of the rostered weekend days, then hours worked on additional weekend days will be paid at the applicable rates.

[1] [2020] FWCA 1933 AE507751 PR718243.

[2] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) (188V) v Berri Limited [2017] FWCFB 3005 at [114].

[3] (2018) 264 FCR at [197].

[4] [2017] FWCFB 3005 at [114].

[5] Principle 1 in AMWU v Berri; Principle 8 in Golden Cockerel [2014] FWCFB 7447 at [41]; AMA & ASMOF v Royal Women’s Hospital [2022] FWCFB at [7].

[6] AMWU v Berri at [114], Principle 12; Golden Cockerel, Principle 6.

[7] [2017] FWCFB 3005 at [114].

[8] Amcor Limited v CFMEU (2005) 222 CLR 241 at 246, 262.

[9] Principle 5 in AMWU v Berri at [114]; King v Vicentre Swimming Club Inc [2020] FCA 1173 at [128].

[10] See Kucks v CSR Ltd (1996) 66 IR 182 at [184]; WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197].

[11] See HSU v Mercy Hospitals Victoria Ltd ta/a Werribee Mercy Health[2024] FWCFB 235 at [114]; AMWU v Berri Limited at [44]; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [70] – [71]; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 at [80].

[12] AMA & ASMOF v Royal Women’s Hospital [2022] FWCFB at [7]; Kucks v CSR Ltd (1996) 66 IR 182 per Madgwick J at 184-185.

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