Australian Municipal, Administrative, Clerical and Services Union v MacKillop Family Services Limited T/A MacKillop Family Services
[2023] FWC 2604
•11 DECEMBER 2023
| [2023] FWC 2604 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
v
MacKillop Family Services Limited T/A MacKillop Family Services
(C2023/3904)
| COMMISSIONER JOHNS | MELBOURNE, 11 DECEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement
Introduction
Australian Municipal, Administrative, Clerical and Services Union (ASU/Applicant) has applied to the Fair Work Commission (Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (FW Act) with the MacKillop Family Services Limited T/A MacKillop Family Services (MacKillop/Respondent).
In short, the dispute concerns the application of the overtime provisions to full-time employees.
An initial conference did not resolve the dispute and it became necessary to program the matter for hearing.
For the reasons set out below, I have decided the dispute ought to be resolved in the Applicant’s favour.
Background
The facts relating to the dispute were as follows:
a)Mr Kevin Micallef has been employed by Mackillop as a Residential House Supervisor from 16 July 2018.[1] He has been on a full-time basis with the requirement of working 76 hours per fortnight as per the roster.[2]
b)The dispute was brought in relation to a specific pay period, namely, the pay period from 20 March 2023 to 2 April 2023.[3] During this pay period, the agreed ongoing fortnightly roster of Mr Micallef was as follows:[4]
‘Week 1
a. Monday 7:30 am – 4:00 pm (8.5 hours)
b. Tuesday 7:30 am – 3:00 pm (7.5 hours)
c. Thursday 9:00 am – 4:00 pm (7 hours)
d. Friday 7:00 am – 3:00 pm (8 hours)Week 2
e. Tuesday 7:30 am – 3:00 pm (7.5 hours)
f. Wednesday 7:30 am – 4:00 pm (8.5 hours)
g. Thursday 2:00 pm –11:00 pm (9 hours)
h. Saturday 7:30 am – 5:30 pm (10 hours)
i. Sunday 7:30 am – 5:30 pm (10 hours)’
c)On 22 March 2023, Mr Micallef attended work outside of his rostered timetable, for three (3) hours to complete the mandatory CPR training between 9:30am – 12:30pm (the excess hours).[5] Therefore, Mr Micallef’s total hours for the fortnight totalled 79 hours.
d)On receipt of his payslip, Mr Micallef observed that he was paid his ordinary shift rate of pay for the excess hours and instead paid overtime on the last three (3) hours of his Sunday shift identified in item ‘i’ above.[6] The Sunday rates and the overtime rates are identical. Therefore, Mr Micallef in effect did not receive the benefit of the overtime clause.
e)On 9 May 2023, ASU wrote to the Respondent via email noting it has underpaid Mr Micallef by not paying him overtime rates for the excess hours and double time for the 10 hours worked on his rostered shift on Sunday.[7]
f)On 16 May 2023, ASU sent a follow-up email to MacKillop.[8]
g)On 17 May 2023, MacKillop apologised for the delay and noted a response will be forthcoming by no later than 19 May 2023.[9]
h)On 18 May 2023, MacKillop responded to the Applicant denying any underpayment and disputed the interpretation of the 2016 Agreement by the Applicant.[10]
On the same day, the Applicant responded, pressing its position and noted that in the event of the underpayment not being rectified, it is prepared to file a dispute in the Commission.[11]
j)On 6 July 2023, the Applicant filed the current application.[12]
Procedural context and preliminary issues
On 6 July 2023, the Applicant filed the current application before me in accordance with the dispute settlement procedure clause of the MacKillop Family Services Enterprise Agreement 2022 (2022 Agreement).[13]
On 14 July 2023, the matter was subject to an unsuccessful conference before me. Accordingly, I issued directions and set the matter down for hearing (Directions).
On 28 July 2023, the Applicant complied with the Directions and filed its material.[14]
On 31 July 2023, the Respondent sent a letter via email to the Commission and the Applicant contending that the dispute has not been properly brought under the correct enterprise agreement, namely, the MacKillop Family Services Enterprise Agreement 2016 (2016 Agreement) and invited the Applicant to discontinue its application.[15] The Respondent contended so on the basis that the 2016 Agreement covers Mr Micallef as a Residential House Supervisor and not the 2022 Agreement. The Applicant responded on the same day acknowledging the error but otherwise disputed that the overtime provisions are different. The Applicant proposed that it file an amended form F10 and provide supplementary submissions by 11 August 2023.
On 1 August 2023, I directed the filing of the amended form F10 by 4pm on 2 August 2023 and an agreed amended timetable.
On 2 August 2023, the Applicant filed the amended form F10 in accordance with the dispute settlement procedure of the 2016 Agreement.[16] On the same day and in line with the agreed amended timetable, I issued amended directions and listed the matter for hearing on 26 September 2023 (Amended Directions). Both parties duly complied with the Amended Directions.
During the course of the parties’ respective submissions, two preliminary issues were raised:
The Respondent raised a jurisdictional objection.
The Applicant objected to the Respondent being legally represented.
The Jurisdictional objection
The jurisdictional objection raised by the Respondent contended that the Applicant did not comply with the dispute settlement procedure of the 2016 Agreement and thus the application should be dismissed for want of jurisdiction.[17] In short, the Respondent contended that the dispute settlement procedure mandates three internal steps prior to an escalation to the Commission, none of which were complied with by the Applicant.[18] The Applicant did not agree.[19]
On 22 September 2023, the Applicant sent an email to all parties maintaining its opposition against the jurisdictional objection but nevertheless proposed to take immediate action in satisfaction of the dispute settlement procedure.
On 25 September 2023, the Applicant filed a further amended form F10 and a witness statement attesting to the actions taken to resolve the jurisdictional objection.[20]
At the beginning of the hearing on 26 September 2023, the Respondent confirmed that it no longer pressed its jurisdictional objection.[21] Consequently, no jurisdictional objections were raised by the Respondent. Therefore, I am satisfied that the Commission as its presently constituted is invested with jurisdiction to arbitrate the matter.
Permission to be represented
The Respondent in its outline of submissions dated 1 September 2023, sought permission to be represented. The submission was primarily advanced pursuant to s.596(2)(a) of the FW Act. The Respondent requested that the question be resolved prior to the hearing so that the Respondent had the necessary arrangements in place to properly represent itself if permission was refused.[22] In supporting its application, the Respondent referred me to two previous Commission authorities and contended that given there is a jurisdictional objection, and the contest is over the legal meaning and effect of the 2016 Agreement, legal representation would enable the matter to be dealt more efficiently taking into account the complexity of the matter.[23]
The Applicant in its reply submissions dated 15 September 2023 objected to the Respondent being legally represented on the basis that:[24]
a)the matter is not legally complex and referred to a previous Full Bench authority of the Commission where the proposition that jurisdictional objections by their nature are complex was rejected;
b)the Respondent is intimately familiar with the 2016 Agreement due to their experience in its negotiation and application;
c)the Respondent has adequate internal industrial resources; and
d)the conduct of the Respondent’s representatives to raise the jurisdictional objection until after the Applicant has filed its submissions evidences inefficiency.
The Respondent in its reply submissions dated 21 September 2023 pressed its application and also relied on s.596(2)(b) of the FW Act, on the basis that the matter is legally complex and disputed the Applicant’s contention that it has the internal resources to effectively represent itself.[25] In support of its application, the Respondent stated:[26]
‘35. Mackillop does not employ persons who have experience in appearing before the Commission (or another tribunal) as an advocate in a contested hearing.
36. It would be unfair to refuse to allow Mackillop to be legally represented at the hearing because it lacks a person experienced in industrial law or advocacy and it is not capable of effectively representing itself. The word "effectively" connotes a high degree of capacity not just "getting by" or "struggling through" but meaning "impressive effect"; "powerful in effect" and "striking impression": see CEPU v UGL Resources Pty Ltd (Project Aurora) [2012] FWA 2966.’
On 25 September 2023, after having considered the above submissions, my Chambers sent an email to the parties notifying them that I was satisfied that the matter is invested with complexity and, further, that I would be assisted in the efficient conduct of the matter if permission is granted. Accordingly, in the overall exercise of my discretion, I granted permission to the Respondent to be represented pursuant to s.596 of the FW Act.
The hearing
At the hearing:
a)The Applicant was represented by Ms Deeana Predic, an Industrial Officer of the Applicant.
b)The Respondent was represented by Mr Nicholas Harrington of Counsel who was instructed by Ms Elizabeth Cole, Senior Associate, from DLA Piper.
The parties confirmed during the hearing that they did not require any of the witnesses for cross-examination.[27]
In advance of the hearing the parties filed materials which were compiled in a Digital Tribunal Book (DTB). For completeness I set out below the documents relied upon by the parties:
| Exhibit | Document title | Date |
| 1 | Form F10 | 06-07-2023 |
| 1.1 | Attachments A-F | various |
| 2 | The Respondent's form F53 | 12-07-2023 |
| 3 | The Applicant's outline of submissions | 28-07-2023 |
| 3.1 | Witness Statement of Kevin Micallef | 28-07-2023 |
| 4 | Letter from the Respondent to the Commission | 31-07-2023 |
| 5 | Amended Form F10 | 02-08-2023 |
| 6 | The Applicant's supplementary outline of submissions | 11-08-2023 |
| 7 | The Respondent's outline of submissions | 01-09-2023 |
| 7.1 | Witness statement of Natalia Ellaway | 01-09-2023 |
| 8 | The Applicant's outline of submissions in reply | 15-09-2023 |
| 8.1 | Reply statement of Kevin Micallef | 15-09-2023 |
| 8.2 | Attachments KM-01 - KM-03 | various |
| 8.3 | Reply statement of Kristy Lee Tyrrell | 15-09-2023 |
| 8.4 | Attachments KT-01 - KT-02 | various |
| 9 | The Respondent's outline of submissions in reply | 21-09-2023 |
| 9.1 | Supplementary witness statement of Natalia Ellaway | 21-09-2023 |
On 25 September 2023 at 3:16pm, the Applicant filed an amended form F10 and the witness statement of Ms Deeana Predic (as explained above). These documents are identified as Exhibit 10 and 10.1 respectively.[28]
On 25 September 2023 at 6:51pm, the Respondent sent an email to all parties attaching a position description and a copy of the Social, Community and Home Care and Disability Services Industry Award 2010 in place as at 16 November 2015, noting it may refer to them during the course of the hearing. At the hearing, the Respondent confirmed that it no longer wished to rely on those documents and that it was content with the contents of the DTB.[29] The Applicant also confirmed that it was content with the contents of the DTB.[30]
After the conclusion of the hearing on 26 September 2023, the Respondent sent an email to my Chambers and the Applicant at 12:46pm on the same day stating (formalities omitted):
‘The Respondent wishes to clarify one submission made by Mr Harrington and by doing so respond to a proposition the Commission put to Ms Predic when she addressed in reply.
First, clause 11.2(b) contains this critical phrase: ‘and anything over 76 hours per fortnight that hasn’t already had overtime applied to it and isn’t a Saturday or Sunday ordinary shift’ (the Phrase). Mr Harrington advanced the oral submission that the word ‘ordinary’ should be read into (or added) to the juncture between “76” and “hours” in the Phrase. That submission is withdrawn. It was erroneous. No such additional word should be read in by the Commission.
Secondly, the reference in the Phrase to “anything over 76 hours per fortnight” triggers an obligation to pay. The obligation to pay overtime under clause 11.2(b) will be triggered once hours are worked “over” 76 hours but subject to the two qualifiers in the Phrase: (1) hasn’t already had overtime applied to it and (2) is not a Saturday or Sunday shift. Those two qualifiers are to be read conjunctively because of the word “and”.’
In light of the same, I provided the Applicant until 4pm on 27 September 2023 to respond. The Applicant responded at 1:36 pm on 26 September 2023 as follows (formalities omitted):
‘The ASU has no response to the first clarification.
However, with respect to the second clarification, it is unsafe to accept the qualifiers that the Respondent has suggested that the obligation to pay overtime under clause 11.2(b) should be subject to. The second qualifier is not an accurate representation of the wording of the relevant sentence in the clause, which reads "isn't a Saturday or Sunday ordinary shift". To remove the word 'ordinary' changes the meaning of the provision in a manner that is inconsistent with the actual wording. That the sentence does include reference to Saturday and Sunday ordinary shifts supports the ASU's argument that an employee has a prearranged or pre advised roster of shifts (their ordinary hours).
The 2 April 2023 Sunday shift was Mr Micallef's ordinary shift, as advised in advance in his roster that he had been working for some time before the relevant pay period. Anything not pre advised in this manner does not form part of his ordinary hours. Therefore to remove the word ordinary distorts the true intention of the provision and deflects from the relevance of the fact that Mr Micallef had a series of ordinary shifts that he worked on a regular basis. Overtime simply cannot be paid on for work that is an ordinary shift.’
On 26 September 2023 at 2:36pm, the Respondent sent a further email which stated (formalities omitted):
‘Further to Ms Predic’s email below, we did not intend to remove the word ordinary from the phrase “Saturday or Sunday ordinary shift” in paragraph four of my email sent at 12:46pm. This was an error in transposition, and I note that the full phrase is set out in paragraph 3 of my email.
The Respondent relies on the literal phrase as set out at clause 11.2(b) of the agreement.’
I have decided to identify this chain of correspondence as Exhibit 11.
In coming to this decision, I have had regard to all of the materials identified above and the submissions made during the hearing.
The dispute
The Applicant and the Respondent agreed before me that the question to be determined is as follows:[31]
‘Where a full time shift worker employee covered by the 2016 Agreement works in excess of 76 hours in a fortnight, for the purposes of clause 11.2 of the 2016 Agreement and the calculation of any overtime payment, are the hours in excess of 76 hours in the fortnight to be calculated upon:
a) the day on which the employee worked in excess of any rostered hours? Or
b) the day upon which the employee is calculated to work any time in excess of the 76 hours in the roster period’
The Applicant advocated an affirmative answer to the first option and the Respondent the second.
The relevant clauses of the 2016 Agreement referred to by each party in their respective submissions are reproduced below.
a)Clause 6 defines ‘ordinary hours’ and provides as follows:
‘Ordinary hours means the number of hours worked in a day which average 76 hours per fortnight or less than 76 hours per fortnight for part time Employees. Ordinary hours are advised on commencement of employment or when there is a change to shift/work patterns.’
b)Clause 7(b) defines ‘full-time employment’ and provides as follows:
‘Full-time employment means employment involving a regular pattern of hours that average 38 hours per week.’
c)Clauses 9.1 and 9.2 provides as follows:
‘9.1 Ordinary hours of work
(a) The ordinary hours of work for a full-time employee shall be 38 hours per week, or an average of 38 hours per week in a four week period, subject to no more than 76 hours being worked in any two consecutive weeks and no more than 48 ordinary hours being worked in any one week. - By agreement, the ordinary hours may be worked up to 10 hours per shift.
9.2 Span of hours
(a) Day worker: The ordinary hours of work for a day worker will be worked between 6.00 am and 8.00 pm Monday to Sunday.
(b) Shiftworker: A shiftworker is an employee who works shifts in accordance with clause 12.
(c) Subject to their engagement, Employees will work according to a roster which may include evenings, weekends and public holidays. Employees may also be required to work reasonable additional hours on any day, including weekends and public holidays, as determined by operational requirements (see clause 11.1). A roster of at least fourteen days duration setting out Employees' daily working hours, commencing and finishing times will be provided to each Employee and posted at least fourteen days before it comes into operation in each work location and where it may be readily seen by Employees.’
d)Clauses 11.1 and 11.2(a)-(b) provides as follows:
‘11.1 Reasonable overtime
(a) MacKillop may require an Employee to work reasonable overtime.
(b) An Employee may refuse to work overtime if the request by MacKillop is unreasonable (as defined in the NES) including by having regard to:
(i) any risk to the Emploee's health and safety from working the overtime hours;
(ii) the Employee's personal circumstances, including family responsibilities;
(iii) the needs of MacKillop;
(iv) any notice given by MacKillop to work the overtime hours,
(v) any notice given by the Employee of their intention to refuse to work the overtime hours;
(vi) the nature of the Employee's role and level of responsibility;
(vii) the factors identified in s.62(3) of the Act; and
(viii) any other relevant matter.
(c) An entitlement to overtime will only arise where the Employee is requested by MacKillop to work such overtime or the overtime is validly authorised by MacKillop in advance of being worked and recorded. In the event of an emergency to ensure care of a client overtime may be authorised by MacKillop after it has been worked.
11.2 Overtime Rates
(a) When calculating overtime consideration is given to:
(i) Excess hours worked on a shift basis.
(ii) Anything over 76 hours per fortnight. Regardless of where the overtime falls, overtime is paid on anything over 76 hours per fortnight that hasn't already had overtime applied to it and isn't a Saturday or Sunday ordinary shift.
(iii) Overtime is not payable for ordinary hours worked on Saturday or Sundays.
(b) Full-time Employees: A full-time Employee will be paid the following payments for all work which exceeds 10 ordinary hours per shift and anything over 76 hours per fortnight that hasn't already had overtime applied to it and isn't a Saturday or Sunday ordinary shift:
(i) disability services - for all authorised overtime on Monday to Saturday, payment will be made at the rate of time and a half for the first two hours and double time thereafter;
(ii) all other Employees, not delivering disability services, - for all authorised overtime on Monday to Saturday, payment will be made at the rate of time and a half for the first three hours and double time thereafter;
(iii) for all authorised overtime on a Sunday, payment will be made at the rate of double time;
(iv) for all authorised overtime on a public holiday, payment will be made at the rate of double time and a half; and
overtime rates under this clause will be in substitution for, and not cumulative upon, the shift premiums prescribed in clause 12, and Saturday and Sunday work premiums prescribed in clause 9.9.’
Applicant’s submissions
On 11 August 2023, the Applicant submitted:[32]
‘24. Clause 6 of the 2016 Agreement provides that ‘ordinary hours’ means hours worked in a day that average 76 hours per fortnight for full-time employees or less than 76 hours per fortnight for part-time employees. Ordinary hours are advised at the commencement of employment or when there is a change to shift/work patterns.
25. The Respondent’s Undertaking to the 2016 Agreement also provides that before the commencement of employment, part-time employees will be given a regular pattern of work in writing that includes the hours and days they will work, including start and finish times. This can be changed only by mutual agreement.
26. Clause 9.1 provides that the ordinary hours for a full-time worker are 38 hours per week or 76 hours per fortnight or an average of 38 hours per week in a four-week period, subject to no more than 48 hours being worked in any one week or 76 hours being worked in a fortnight.
27. An employee may be required to work reasonable additional hours on any day subject to clause 11.1. Clause 11.1 permits the Respondent to require an employee to work reasonable overtime which may be refused by an employee with regard to the reasons outlined in (b).
28. When calculating overtime, the Respondent must consider (clause 11.2(a)):
(i) Excess hours worked on a shift basis.
(ii) Anything over 76 hours per fortnight. Regardless of where the overtime falls, the overtime is paid on anything over 76 hours that hasn’t already had overtime applied to it and isn’t a Saturday or Sunday ordinary shift.
(iii) Overtime is not payable for ordinary hours worked on Saturday or Sundays.
29. There is no ambiguity in these provisions. The plain reading of clause 11.2(a) is that overtime is considered for excess hours worked on a shift basis, not a fortnightly basis, and it does not matter where in the fortnight the excess hours fall.
30. Clause 11.2(a)(iii) makes it unequivocal that overtime is not payable for ordinary hours worked on Saturdays or Sundays.
31. If an employee performs their ordinary hours as per their roster and is required to work excess hours that mean their shift exceeds 10 hours or their fortnightly hours exceed 76 hours, then they should be paid overtime for the excess hours and not for the last hours in their roster cycle.
32. Shift workers work on a fortnightly roster (clause 9.2(c)). Their ordinary hours are allocated to them in advance. Any hours within a fortnight that they are asked to work which take them above 10 hours per shift or 76 per fortnight should be paid at overtime rates.
33. For example, a part-time employee had ordinary hours where they did not work on Sunday in week 1 of the Pay Period but did work on Sunday in week 2 of the Pay Period. This employee worked excess hours during the Pay Period on Wednesday in week 2 which took them over the 76-hour fortnightly threshold. The excess hours, not the ordinary hours on Sunday in week 2, should attract the overtime rates set out in clause 11.2(b)(ii).
34. By applying the overtime rates to the Sunday ordinary hours, and not the Wednesday hours, the Respondent would be in breach of clause 11.2.
35. Similarly, any full-time employee of the Respondent who has a shift on the second Sunday of their pay period should receive the overtime rates detailed in 11.2(b) on any excess hours worked, regardless of where in the fortnight they fall. This would apply to any full-time employee regardless of whether they regularly work Sunday shifts or not.
36. Clause 11.2(a)(ii) and (iii) would have no work to do if the overtime rates were applied to the hours at the end of the pay cycle, regardless of when the excess hours were worked, given Saturday and Sunday always fall at the end of the pay cycle.
37. In the example of Kevin Micallef, the excess hours were worked outside of his contracted hours. The hours that should have been compensated under clause 11.2(b) and paid at time and a half are those hours not usually worked by Mr Micallef, not the hours that formed part of his ordinary, contracted hours.
38. Mr Micallef worked the excess hours on Wednesday 22 March 2023, and he worked his ordinary, contracted hours on Sunday 2 April 2023.
39. Clause 11.2(a)(iii) expressly prohibits overtime being paid for ordinary hours worked on Saturdays or Sundays.
40. Mr Micallef should have been paid overtime rates prescribed in clause 11.2(b) for the excess hours worked on Wednesday 22 March 2023. Instead, the Respondent has introduced a whole new concept that overtime is payable at the point that an employee exceeds 76 hours for the fortnight. This concept does not exist in the 2016 Agreement and is not available within the ordinary meaning of the words.
41. By paying overtime rates on Mr Micallef’s final three Sunday hours in the Pay Period, the Respondent is in breach of the Agreement as the overtime rates should have been applied to the excess hours performed on 22 March 2023.
42. In summary, all employees under the Agreement should receive overtime rates under clause 11.2(b) for the actual excess hours they work that take them over 76 hours per fortnight, not on the equivalent ordinary hours at the end of the fortnight pay period.
Impact
43. In examining Mr Micallef's witness statement, it becomes evident that the Respondent's application of overtime rates lacks coherence with the ordinary meaning of the words in the relevant provisions and raises concerns of unfairness.
44. Specifically, Mr Micallef has expressed his reluctance to accept additional shifts due to the absence of overtime penalties on those hours. Conversely, employees who do not have a Sunday shift at the end of the Respondent's pay period will be more inclined to accept additional shifts, as they would be eligible for overtime penalties on those hours.
45. This disparity in the application of overtime rates creates an uneven playing field and, as a result, discourages employees like Mr Micallef from taking on additional work. Such disparity contravenes the intent of the provisions and is not available within the ordinary meaning of the words in the 2016 Agreement. These provisions are not ambiguous and there is nothing within the wording of the 2016 Agreement that authorises the Respondent to apply overtime penalties in such a manner.
46. The relevant overtime provisions in the 2016 Agreement are beneficial to workers and intended to compensate for the inconvenience of working additional hours. The Respondent's method of applying the provisions is contrary to that purpose as it erodes the benefit to workers. there is nothing within the wording of the 2016 Agreement that authorises the Respondent to apply overtime penalties in such a manner.
46. The relevant overtime provisions in the 2016 Agreement are beneficial to workers and intended to compensate for the inconvenience of working additional hours. The Respondent's method of applying the provisions is contrary to that purpose as it erodes the benefit to workers.’
Respondent’s submissions
On 1 September 2023, the Respondent submitted:[33]
‘The architecture of clause 11.2: Overtime rates
53. Clause 11.2 of the 2016 Agreement regulates the payment of overtime. In respect of full time employees, it has two (2) operative parts.
54. First, clause 11.2(a) is to be construed as a guide to certain relevant considerations which must be applied to the calculation of overtime. It provides that there are three (3) critical matters requiring identification in ‘calculating’ any overtime. Each will be addressed below.
55. Clause 11.2(b) contains the formula for the calculation of overtime for ‘full-time employees’. It is informed by the ‘considerations’ contained in clause 11.2(a) but it must also be applied on its own terms. Mackillop will contend this is the sub-clause which determines the entitlement.
Clause 11.2(a): construction
56. The three considerations contained in clause 11.2(a) are:
(a) Were there excess hours worked on a shift basis?
(b) Was there ‘anything over’ 76 hours per fortnight – ‘regardless of where it falls, overtime will be paid on ‘anything over’ 76 hours per fortnight that hasn’t already had overtime applied to it;
(c) Overtime is not payable for ordinary hours worked on Saturday and Sundays.
57. Upon the facts in this dispute, the ‘considerations’ are answered as follows:
a) there were excess hours worked, namely 3 hours to a total of 79 hours in the fortnight period;
b) there were hours ‘over 76 hours’ and those hours ‘fell’ on the final Sunday shift; and
c) the hours ‘fell’ on the final Sunday shift therefore overtime was not payable for those Sunday hours.
58. But that is not the end of the matter. It is clause 11.2(b) to which these considerations must apply.
59. Clause 11.2(b) of the 2016 Agreement applies expressly to full time employees. It must be interpreted through the paradigm of the three considerations contained in clause 11.2(a).
60. Clause 11.2(b) mandates the payment of overtime in two (2) instances. They are:
(a) ‘for all work which exceeds 10 ordinary hours per shift’; and
(b) ‘anything over 76 hours per fortnight that hasn’t already had…’.
61. Mr Micallef did not ever, in the relevant roster period, work for any period which exceeds 10 ordinary hours. The first limb is not engaged.
62. Mr Micallef did work ‘over 76 hours’ in the roster period. But that period worked over the 76 hours only fell for consideration on his final Sunday shift. It had not had overtime ‘applied to it’. But neither could it. Clause 11.2(a)(iii) expressly excludes payment of an additional overtime rate of pay for ordinary hours worked on a Sunday – it is already paid at 200%.
63. It is conceded that, upon the proper construction of clause 11.2(a) and (b), if Mr Micallef’s last shift for the fortnight had been on a weekday, the final three hours of such a shift would take him past 76 hours and that weekday shift would have attracted overtime rates.
64. Upon the proper construction of clause 11.2 of the 2016 Agreement, Mr Micallef has been paid his correct rate of pay. Under the agreement, there could be no additional payment of any overtime for the additional 3 hours worked on a Sunday.’
Applicant’s reply submissions
On 15 September 2023, the Applicant replied as follows:[34]
‘28. At paragraphs 56 and 57 of the Respondent’s Outline, the Respondent has identified three considerations contained in clause 11.2(a).
29. The Applicant does not agree with the Respondent’s answers to these considerations.
30. As submitted in our Outline of Submissions, the unambiguous interpretation of clause 11.2(a) is that overtime should be paid on the excess hours worked, wherever they fall, not on an employee’s ordinary hours. The Respondent has not provided a compelling rebuttal, or any rebuttal to this submission.
31. While 11.2(a) provides considerations for calculating overtime, the relevance of the clause is bolstered by the fact that the broader provisions in clause 11.2(b) and (c) refer to the same considerations. Beingthat overtime cannot be paid on ordinary hours on Saturday or Sundays.
32. In the Respondent’s Outline the Respondent continues to refer to the concept of a ‘roster period’. The Respondent submits that Mr Micallef did work over 76 hours, but in the relevant ‘roster period’ only worked over 76 hours on his ‘final Sunday shift’.
33. The 2016 Agreement makes no mention of a ‘roster period’. Thus, this is not the relevant for the purposes of determining when overtime hours fall. By applying overtime to the ‘roster period’ the Respondent has created a brand-new concept that suits their budget but is not available to them within the words of the 2016 Agreement.
34. It seems that the Respondent is suggesting that ‘ordinary hours’ are simply the number of hours – up to 76 hours per fortnight – that an employee will work. This disregards the definition of ordinary hours in clause 6 which says that ordinary hours will be advised on commencement of employment or when there is a change to shift/work patterns. This implies that shift/work patterns – the days and hours of work – are prearranged and do not change from week to week or shift to shift. Just because an employee is required to work excess hours, their ordinary hours are not suddenly moved given full time and part time employees must have a regular pattern of work as per clause 6.
35. As previously submitted in the Applicant’s Outline at paragraph 32, as shift workers have their ordinary hours allocated to them in advance, any excess hours within a fortnight which take them above 10 hours per shift or 76 hours per fortnight, after considering their ordinary hours, should be paid at overtime rates. Overtime cannot be paid on ordinary hours which are set in accordance with clauses 6 and 9.2(c).
36. All employees under the Agreement should receive overtime rates under clause 11.2 for the actual excess hours they work that take them over 76 hours per fortnight, not on the equivalent ordinary hours at the end of the fortnight pay period.’
Consideration
In the first instance, I observe that there was no dispute and the parties agreed that the relevant construction and interpretation principles should be derived from the Full Bench authority of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (Berri).[35]
Further, as evidenced by each party’s submissions, the contest is solely on the express words of the 2016 Agreement.
Therefore, in adopting the Berri principles it is necessary to,
a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement,
b) determine whether the Agreement has a plain meaning,
c) review the text of the Agreement as a whole,
d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,
e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement,
f) not adopt an overly technical approach to the interpretation of the Agreement, and
g) not contradict the plain language of the Agreement.
The starting point is to determine if the 2016 Agreement is ambiguous or susceptible to more than one meaning. For the reasons below I do not think it is. While an interpretation of the Agreement may not be free from difficulty it is the case that the principles developed in the general law in the context of the interpretation of statutes can usefully be applied.
Also, it is necessary to have regard to the ordinary meaning of relevant words. It is neither necessary nor permissible to include new words or ignore others that exist, in order to determine the meaning of the 2016 Agreement.
It is entirely consistent with the Berri principles that the rules of statutory construction be applied to assist in understanding the meaning of the 2016 Agreement as a whole. As the Full Bench observed in Berri,[36]
‘… 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…’
In the present matter, by virtue of clause 6 of the 2016 Agreement ‘ordinary hours’ are 76 (on average over a fortnight). Therefore, hours greater than 76 (on average over a fortnight) are, ordinarily, intended to attract overtime rates of pay.
The construction advanced by the Respondent could lead to a situation where the Respondent would be motivated to roster hours that, in total exceed 76 hours, but, because of when they are rostered by the Respondent, would enable the Respondent to not pay overtime rates of pay.
That cannot have been the objective intent of the parties to the 2016 Agreement.
Meaning must be given to the phrases:
a) ‘regardless of when the overtime falls...’;
b) ‘hasn’t already had overtime applied to it...’; and
c) ‘and isn’t a Saturday or Sunday ordinary shift’.
It is clear in my opinion that a plain reading clause of 11.2(a) means that the overtime is payable (under cause 11.2(b)) on a shift basis. There is no ambiguity. This is because the overtime is payable ‘regardless of when the overtime falls’.
To assess the entitlement to overtime at the end of the fortnightly period misconstrues the meaning of clause 11.2.
While clause 11.2(a) does not impose an obligation to pay overtime (that is to be found in clause 11.2(b)), subparagraph (a) has work to do. It cannot be a part of the 2016 Agreement and not be given meaning. The work subparagraph (a) does is to inform how clause 11.2(b) is to operate.
In respect of Mr Micallef the overtime rates should have been applied to the 3 additional hours he worked on the Wednesday. The calculation made on the Sunday ordinary hours was incorrect. It is not proper to treat Mr Micallef’s rostered ordinary hours on a Sunday as the hours on which he worked overtime and then deprive him of the overtime payment because the hours are said to fall on a Sunday. The additional hours did not fall on a Sunday.
Applying the overtime rates at the end of the pay cycle, as the Respondent has done, deprives clause 11.2(a) of the necessary work it must do in the 2016 Agreement. That cannot have been the objective intention of the parties to the 2016 Agreement. I reject the Respondent’s contention that there is something like a rolling assessment of hours worked during the relevant pay period. The rosters are set in advance. Hours are averaged over the fortnight. If an employee works more than 76 hours, they are to be paid overtime. The additional hours worked outside the set roster are not, as the Respondent has done, counted at the end of the fortnight (and if they fall on a Sunday not paid as overtime). The additional hours are counted when they are worked. There is nothing in the 2016 Agreement that supports the Respondent’s construction that the hours are counted only at the end of the roster period.
Mr Micallef worked 3 more hours than his rostered shifts in the fortnight. He did so on Wednesday, 22 March 2023. He should be paid overtime in respect of the same.
Actual excess hours that employees work (that are greater than 76 hours averaged in a fortnight), must attract overtime rates of pay. In circumstances where Mr Micallef worked 79 hours in the relevant period, it is only a non-sensical construction of the 2016 Agreement that would deprive him of payment. Payment for working the additional hours is something that must flow from the beneficial nature of the 2016 Agreement. ‘Regardless of when the overtime falls’ the employees must be paid. The inconvenience of working additional hours must be compensated for.
True it is that clause 11.2(b) determines the entitlement. But subparagraph (b) cannot be read in isolation. It must be considered in the context of the 2016 Agreement as a whole. It is necessarily informed by the proper construction of clause 11.2(a).
‘Ordinary hours’ are advised on the commencement of employment or when the roster is published. Hours outside of ‘ordinary hours’ are to be paid as overtime.
Conclusion
For these reasons the construction of the 2016 Agreement advanced by the ASU is to be preferred.
Therefore, in answer to the Agreed Question:
‘Where a full-time shift worker employee covered by the 2016 Agreement works in excess of 76 hours in a fortnight, for the purposes of clause 11.2 of the 2016 Agreement and the calculation of any overtime payment, are the hours in excess of 76 hours in the fortnight to be calculated upon:
a) the day on which the employee worked in excess of any rostered hours? or
b) the day upon which the employee is calculated to work any time in excess of the 76 hours in the roster period’?
the answer is (a), i.e. on the day on which the employee worked in excess of any rostered hours. That is how it should now be applied by the Respondent.
Although, as Ms Predic appropriately conceded[37], I cannot make a declaration about past rights, it seems unjust that Mr Micallef was not paid overtime in the relevant period. The Respondent is invited to correct that injustice.
COMMISSIONER
Appearances:
D Predic on behalf of the Applicant
N Harrington of Counsel for the Respondent
Hearing details:
2023
Melbourne (Video using Microsoft Teams)
26 September.
[1] Digital Tribunal Book (DTB), Exhibit 3.1, p 48; see also DTB, Exhibit 7, p 115.
[2] DTB, Exhibit 3.1, p 51-52; see also DTB, Exhibit 7, p 116.
[3] DTB, Exhibit 6, p 101.
[4] DTB, Exhibit 3.1, p 48.
[5] DTB, Exhibit 3.1, p 49; see also DTB, Exhibit 7, p 116.
[6] DTB, Exhibit 3.1, p 49; see also DTB, Exhibit 7, p 116.
[7] DTB, Exhibit 3.1, p 65; see also DTB, Exhibit 7, p 116.
[8] DTB, Exhibit 3.1, p 63.
[9] DTB, Exhibit 3.1, p 62.
[10] DTB, Exhibit 3.1, p 61-62.
[11] DTB, Exhibit 3.1, p 60-61.
[12] DTB, Exhibit 1, p 10.
[13] DTB, Exhibit 1, p 5.
[14] DTB, Exhibit 3.
[15] DTB, Exhibit 4.
[16] DTB, Exhibit 5, p 73.
[17] DTB, Exhibit 7, p 117-120.
[18] DTB, Exhibit 7, p 118.
[19] DTB, Exhibit 8, p 128.
[20] Transcript of the proceedings, PN9.
[21] Transcript of the proceedings, PN17.
[22] DTB, Exhibit 7, p 113-114.
[23] DTB, Exhibit 7, p 113-114.
[24] DTB, Exhibit 8, p 126-127.
[25] DTB, Exhibit 9, p 160.
[26] DTB, Exhibit 9, p 160.
[27] Transcript of the proceedings, PN10-13.
[28] Transcript of the proceedings, PN9.
[29] Transcript of the proceedings, PN8.
[30] Transcript of the proceedings, PN6.
[31] Transcript of the proceedings, PN21-46.
[32] DTB, Exhibit 6, p 107-111.
[33] DTB, Exhibit 7, p 121-122.
[34] DTB, Exhibit 8, p 130-131.
[35] DTB, Exhibit 6, p 103; see also DTB, Exhibit 7, p 120.
[36] [114].
[37] Transcript PN80-84.
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