Australian Municipal, Administrative, Clerical and Services Union v West Wimmera Shire Council
[2024] FWC 2431
•6 SEPTEMBER 2024
| [2024] FWC 2431 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Municipal, Administrative, Clerical and Services Union
v
West Wimmera Shire Council
(C2023/7462)
| COMMISSIONER TRAN | MELBOURNE, 6 SEPTEMBER 2024 |
Application to deal with a dispute – accrual of time off in lieu
On 1 December 2023, the Victorian and Tasmanian Authorities and Services Branch of the Australian Municipal, Administrative, Clerical and Services Union (ASU / the Union) applied for the Fair Work Commission (the Commission) to deal with a dispute under s 739 of the Fair Work Act 2009 (the Act) and Clause 15 – Disputes Settling Procedure of the West Wimmera Shire Council Enterprise Agreement No. 10 - 2021 (the Agreement).
The Respondent is West Wimmera Shire Council (the Council).
The dispute relates to employees of the Council – Physical/Community Services workers – who are road construction and maintenance workers. Their work involves jobs such as clearing trees, fixing potholes, grading roads and drainage works. While they may have set hours of work, they cannot simply down tools. A job either has to be completed or the site made safe before they can finish for the day.
Council employees who have been working more than their ordinary hours have been accruing time off in lieu under the Agreement. But they have been accruing time off at the rate of the time worked (known as time for time), rather than at the rate of overtime rates of pay (known as time for time and a half). This dispute relates to how they should have been accruing that time.
The issue between the ASU and the Council is one of interpreting the meaning of clauses in the Agreement. There were no disputed facts. So, the parties agreed that the Commission could resolve the dispute by answering the following questions:
1. Were the additional hours that Physical/Community Services workers at West Wimmera Shire Council worked;
a. overtime at direction,
b. overtime by agreement, or
c. additional ordinary hours worked by agreement between the Council and the employees?
2. Subject to the answer to question 1 above, is Clause 22.1.3 or Clause 42A.3(l) of the West Wimmera Shire Council Enterprise Agreement No. 10 – 2021 the applicable clause with regard to the additional hours worked by the Physical/Community Services workers?
I find it is not necessary to answer the first question in order to resolve the dispute. The answer to the second question is Clause 22.1.3. My reasons follow.
The Agreement
The Agreement is the West Wimmera Shire Council Enterprise Agreement No. 10 – 2021. It was approved on 28 October 2021 and began to operate on 4 November 2021. Its nominal expiry date is 15 October 2024.
The clauses of the Agreement that are relevant to this dispute are:
· Clause 15 – Dispute Settling Procedure
· Clause 22.1.3 – Ordinary Hours
· Clause 42A.3(l) – Overtime – Physical/Community Services Employees
Clause 15 is appended to this decision.
Clause 22.1.3 provides:
“The ordinary hours of work will not exceed eight hours in any one day, except by prior agreement, employees may work up to 10 hours per day at time for time, or be paid overtime rates in accordance with this Agreement, to a maximum accrued time of 40 hours. All the hours after that will be paid overtime in accordance with this Agreement.”
Clause 42A.3(l) provides:
“Time off in lieu
Time off in lieu of overtime may be taken by agreement, at time and a half for time, and to be taken at agreed times, or may be taken with annual leave, at the discretion of Council. Unless otherwise agreed, time off in lieu will be paid out at the relevant penalty rates if it has not been taken within 4 weeks of the overtime being worked.”
Jurisdiction and Procedural Matters
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 where an enterprise agreement includes a term that provides a procedure for dealing with disputes under s 738(b).
It is not in dispute between the parties and I am satisfied that the Commission does have jurisdiction to deal with this dispute in accordance with s 739 and the Dispute Settling Procedure at Clause 15. That jurisdiction includes arbitration.
I conducted a conference in this matter on 23 February 2024 and listed a further conference for 25 March 2024. Prior to the second conference the Union indicated a preference for arbitration. I then issued directions and, in compliance with those directions, the parties filed materials, including submissions, witness statements, relevant documents and case authorities.
I heard the matter on 21 May 2024.
I accepted the following unchallenged witness statements into evidence.
· Mr Bradley West, Leading Hand and Mr Robert Warren, Works Coordinator on behalf of the Union; and
· Ms Janet Watt, HR Manager, on behalf of the Council.
Principles of interpretation are well-settled
The principles of interpretation of enterprise agreements are well settled.
Recently in HSU v Mercy Hospitals Victoria Ltd,[1] the Full Bench reiterated a distillation of the principles from an earlier Full Bench[2] of the Full Court of the Federal Court in James Cook University v Ridd.[3] The principles have also been 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[4] and by the Full Court of the Federal Court in Workpac Pty Ltd v Skene.[5]
There is no controversy about the principles that apply to the construction of enterprise agreements, and I do not repeat them here.
Is there an ordinary meaning of the words, read as a whole and in context?
My starting point is considering the ordinary meaning of the words, read as a whole and in context. Both Clauses 22.1.3 and 42A.3 deal with taking time off in lieu. Clause 22.1.3 provides for that time off as ‘time for time’ and Clause 42A.3 provides for time off in lieu of overtime at time and a half.
I am of the view that Clauses 22.1.3 and 42A.3(l) are in conflict and that there is ambiguity about which applies in the factual circumstances of this dispute.
This is because, while Clause 22.1.3 is situated within a clause that otherwise deals with ordinary hours, it is dealing with what happens for hours in excess of or outside of those ordinary hours, which is how overtime hours are defined in Clause 42A.3, and also the general industrial understanding of what overtime is.
Clause 22.1.3
Clause 22.1.3 is situated in a part of the Agreement dealing with hours of work (Clause 22) and ordinary hours (Clause 22.1).
Clause 22.1 deals with the spread of ordinary hours for employees, which is from 6:00am until 6:00pm, Monday to Friday and has a notation about 38 hours per week in a 19-day 4-week period, totalling 152 hours.
Clause 22.1.2 allows for an extension of the ordinary hours by agreement for a work unit, in specified circumstances.
Clause 22.1.3 logically follows 22.1.2 in dealing with a circumstance for when ordinary hours may change. The clause provides that the maximum ordinary hours of work on any day is 8. It then provides for an exception to that, which is that by prior agreement employees may work up to 10 hours on any one day. Those hours are at time for time to a maximum accrued time of 40 hours. Clauses 22.1.4, 22.1.5, and 22.1.6 deal with breaks.
In Clause 22.1.3, the phrase, “or be paid overtime rates in accordance with this Agreement,” is the alternative to agreeing to work hours up to 10 hours on any one day and accruing it at time for time. Because of the placement of that phrase within commas, the clause can be read without that phrase such that the prior agreement required by the clause refers only to an agreement to work up to 10 hours.
If the relevant employees have not agreed to work additional hours up to 10 hours, then overtime rates of pay are payable for those hours.
Clause 22.1.3 is clearly dealing with how an employee is compensated for working additional hours above ordinary hours, and provides that accruing time off in lieu of payment is at time for time.
Clause 42A.3
Clause 42A.3 deals with what overtime is and the relevant rates of pay. Clause 42A.3(l) provides for an alternative to payment of overtime rates, which is that – by agreement – time off in lieu may be taken instead of payment at overtime rates. What is agreed here is how the employee is compensated for working overtime hours, whether by time off or by payment. Clause 42A.3(l) then provides for how the time off is taken. If it is agreed that time off is being taken instead of payment, that time off may only be taken at agreed times, and may be taken with annual leave at the discretion of the Council. Last, Clause 42A.3(l) provides that the time off in lieu will be paid if it is not taken within 4 weeks of the overtime worked, unless otherwise agreed.
Clause 42A.3(l), like Clause 22.1.3, deals with how an employee is compensated for working hours “in excess or outside of ordinary hours” (as defined in Clause 42A.3(b)). But the option for accruing time off in lieu of overtime is at time for time and a half, whereas in Clause 22.1.3, it is at time for time.
Which clause applies to Physical/Community Services?
Due to the above conflict, I must reconcile which clause applies to the relevant workers, who are Physical/Community Services employees under the Agreement when they undertake work outside their ordinary hours of work.
Relevance of the history of the clauses
As there is conflict between the 2 clauses and ambiguity about which clause applies, the Council submitted that I should have recourse to the history of the clauses.[6] I agree with this approach.
Reviewing the 3 preceding agreements demonstrates that the applicable clause is 22.1.3. This is because the current Agreement is a consolidated agreement, and Clause 22.1.3 was in a section of the Agreement that prevailed over the section in which 42A.3(l) was located, where there was an inconsistency.
The 3 preceding agreements were:
1. West Wimmera Shire Council Enterprise Bargaining Agreement No. 7 – 2012, which the Commission approved on 21 June 2013;
2. West Wimmera Shire Council Enterprise Bargaining Agreement No. 8 – 2015, which the Commission approved on 14 January 2016;
3. West Wimmera Shire Council Enterprise Bargaining Agreement No. 9 – 2018, which the Commission approved on 14 March 2019.
Each of the preceding 3 enterprise agreements were comprised of 3 parts: A, B and C. Part A were the terms and conditions that had been tailored to the Council. Part B was the full text of the Victorian Local Authorities Award 2001, in all 3 predecessor agreements, incorporating amendments up to a date prior to approval of the particular agreement. Part C was the full text of the Nurses (ANMF - Victorian Local Government) Award 2002 in the 2012 and 2015 agreements, and the Nurses (ANMF - Victorian Local Government) Award 2015 in the 2018 agreement.
All the preceding agreements contained Clause 3 – Interpretation of Agreement, which was similar across all 3 agreements. Clause 3 provided that Part A of the agreements was to be read in conjunction with Parts B and C of the agreements, but prevailed over Parts B and C where there was any inconsistency.
Part C is not relevant to this dispute.
Clause 22.1.3 in the current Agreement is similar to the same numbered clause in the preceding agreements, although there are variations in wording. Appended to this decision is a table showing the differences among the clauses. Relevantly, the clause in all the agreements provides for the accrual of time off at the rate of time for time. Clause 22.1.3 was in Part A in the preceding agreements.
None of the preceding agreements contains the opening words of Clause 22.1.3 in the current Agreement, which is: “The ordinary hours of work will not exceed eight hours in any one day, except [by prior agreement etc].” I have dealt with that earlier, in that Clause 22.1.3 logically follows the preceding clause in dealing with hours that are different to ordinary hours: 22.1.2 deals with extension of those hours in specified circumstances; 22.1.3 deals with how extra hours may be worked and compensated for. The opening words do no more than state the general rule about ordinary hours.
Clause 42A.3(l) in the current Agreement is relevantly the same as Clause 34.3.8 in each of the preceding agreements. The wording is the same in all 3 preceding agreements, except that the 2018 agreement contains an additional final sentence. As between the current Agreement and the preceding agreements, the wording is relevantly similar in that the clauses provide for time off in lieu of payment for overtime, which may be taken at 1.5 times the amount of time worked, that this must be agreed between the parties, and that it may be taken consecutively with annual leave. Appended to this decision is a table showing the differences among the clauses. Clause 34.3.8 was in Part B of the preceding agreements.
The Council submitted that Clause 34.3.8 was in an ‘inoperative’ part of the Agreement. Part B of the preceding agreements was not inoperative. Clause 3 – Interpretation requires Parts A and B to be read in conjunction with each other and where there is any inconsistency, that Part A prevails. So, in interpreting how those clauses interacted with each other in the preceding agreements, there must be inconsistency such that the terms cannot be sensibly or fairly read together.[7] That could include a circumstance in which a term of the Agreement demonstrates an intention to cover a particular subject matter to the exclusion of a corresponding term.[8]
Clause 22.1.3 is in the part of the preceding agreements that may prevail over the part of the preceding agreements in which Clause 34.3.8 was located. However, Clause 22.1.3 does not demonstrate an intention to cover the subject matter. It does the opposite as it specifically refers to the other parts of the Agreement for rates of pay.
Clause 34.3.8 was inconsistent with 22.1.3 but only in that the rate of accrual of time off in lieu is greater. The rate of accrual in both clauses cannot be sensibly or fairly read together. Those parts of Clause 34.3.8 that relate to when and how time off in lieu can be taken (that is, by agreement, together with annual leave and within 4 weeks of when the overtime was worked) remain operative.
So, in the preceding agreements, the provision about accruing time off in lieu was accrual at time for time. Looking to the history of the provisions is permissible to resolve the conflict and ambiguity in the current Agreement.
I therefore conclude that Clause 22.1.3 applies when Physical/Community Services employees work hours in excess of their ordinary hours to accrue time off at time for time, and not at time for time and a half, as provided for by Clause 42A.3(l).
Preservation of entitlements
The ASU submitted that I must have regard to Clause 3.4 of the current Agreement, which relevantly provides:
“Implementation
(a) This Agreement consolidates Parts A, B and C of the former agreement (No 9 – 2018). The consolidation is intended to maintain all existing titles and obligations that are relevant to West Wimmera Shire Council employees.
(b) No employee will, on balance, have their overall pay and conditions reduced because of consolidation of this agreement.
…”
The ASU submitted that interpreting the 2 clauses to give precedence to 22.1.3 would be a reduction in the conditions of employees and impermissible under 3.4(b). I disagree. A review of the history of the preceding agreements and what the entitlement was prior to the consolidated current Agreement demonstrates that 22.1.3 prevailed over 34.3.8, as discussed above. As such, there is no reduction in the conditions of employees in my interpretation of the interaction of the 2 clauses.
The relevance of ‘agreeing’ to work overtime
Submissions were directed to the first question for determination, but I have ultimately interpreted the clauses such that it is not necessary to consider whether the overtime was work ‘at direction’ or ‘by agreement’. Further, I do not interpret either Clauses 22.1.3 or 42A.3(l) to deal with whether the overtime hours are to be worked by agreement or direction. The ‘agreement’ required in both clauses is about taking time off instead of receiving payment for overtime hours worked.
Conclusion
I have not answered the first question. The hours worked were hours in excess of ordinary hours of work, and both Clause 22.1.3 and Clause 42A.3(l) deal with an alternative to payment for such hours.
In answer to the second question, Clause 22.1.3 is the applicable clause with regard to the additional hours worked by Physical/Community Services employees in so far as the accrual of time off in lieu is at the rate of time for time, rather than time for time and a half. The other provisions of Clause 42A.3(l) continue to apply about when and how time off in lieu of payment is taken.
COMMISSIONER
Appearances:
D Predic for the ASU.
M Latham of Counsel instructed by Meerkin & Apel Lawyers for the Council.
Hearing details:
21 May 2024
In Melbourne.
Appendix 1 – Clause 15
15. Disputes Settling Procedures
The parties of this Agreement are committed to good industrial relations practices and procedures based on consultation and goodwill. The employer shall ensure that they advise employees subject to this procedure that they may be represented by their union from the beginning of this procedure.
An employee can appoint any person (including a Union Representative) to represent the employee at all stages of the dispute resolution process.
If a dispute arises about this agreement, the National Employment Standards (NES) or any other work related matter (including a dispute about whether a workplace right has been breached) the parties to this dispute will attempt to resolve the dispute at the workplace level. This includes a dispute or grievance about whether an employer has reasonable grounds to refuse a request for flexible working conditions or an application to extend unpaid parental leave.
A Union representative appointed by an employee, who is also an employee of the Council, shall have reasonable access to resources (including photocopier, telephone, fax machine, email and noticeboard) to perform their role.
A union representative appointed by an employee, who is also an employee of the Council, shall be released to perform their role on paid time.
Where a dispute occurs (whether any such dispute or claim arises out of the operation of this Agreement or not) regarding the wages and conditions of employment of any employee covered by this Agreement the following shall apply:
15.1 Any dispute shall, in the first instance, be discussed between the employee(s) concerned, their representative if requested, and the immediate line manager. The line manager or supervisor must make a genuine attempt to resolve the matter speedily.
15.2 If the matter cannot be resolved, it will be referred to the appropriate line manager (Director) who will attempt to resolve the matter speedily. The line manager (Director) shall consult with a representative appointed by the employee when endeavouring to resolve the matter.
15.3 If the matter is still not resolved, the matter shall be immediately referred jointly, for discussion, to the Chief Executive Officer.
15.4 If the matter cannot be resolved, it may be referred to a mutually agreed independent mediator (from an agreed list of mediators) who may exercise powers of conciliation or arbitration and whose decisions will be binding subject to prior agreement by the parties.
15.5 Should the matter still be unresolved either party shall be entitled to refer it to Fair Work Commission (FWC) for conciliation and, if necessary, arbitration. The parties shall not raise any jurisdictional matters pertaining to the Commission’s powers to settle any dispute via arbitration. All parties will abide by any decision resulting from a matter being referred to FWC.
15.6 If arbitration is necessary, the parties agree that FWC shall exercise all powers as are necessary to make the arbitration effective.
15.7 Should any party so wish, all or any of the steps 15.1, 15.2, 15.3, 15.4 above, may be bypassed in the interests of a speedy resolution of the matter.
15.8 To ensure that all disputes between parties are settled quickly, the total process time between steps 15.1 and 15.5 should not exceed seven working days. However, if more time is required, the parties may mutually agree to extend the time.
15.9 While these procedures are being followed, both parties agree that on a “without prejudice” basis there will be no change to existing work or management practices or procedures, so that the status quo is maintained.
15.10 During the entire period of the dispute, for the time when the matter first arises until the time of its resolution (at whatever stage the resolution occurs) normal work shall continue, unless the performance of normal work would place at risk the health and safety of the employee(s) concerned.
15.11 If a dispute arises due to a change in work practices, then for the duration of the resolution procedure, the employees will revert to work practices in place prior to the dispute arising and the union will not undertake any industrial action in relation to the dispute.
15.12 A dispute relating to a systemic gender equality issue which is not resolved in the workplace may be referred to the Public Sector Gender Equality Commissioner (Commissioner) to deal with.
Appendix 2 – Table of differences between clauses
| 2012 and 2015 agreement | 2018 agreement | Current Agreement |
| Clause 22.1.3 | Clause 22.1.3 | Clause 22.1.3 |
| By agreement, employees may work beyond their normal finishing time for up to 2 hours per day at time for time, or be paid overtime rates in accordance with Part B and C of this Agreement, to a maximum accrued time of 40 hours. All the hours after that will be paid overtime in accordance with Part B and C of this Agreement. | By prior agreement, employees may work up to 10 hours per day at time for time, or be paid overtime rates in accordance with Part B and C of this Agreement, to a maximum accrued time of 40 hours. All the hours after that will be paid overtime in accordance with Part B and C of this Agreement. | The ordinary hours of work will not exceed eight hours in any one day, except by prior agreement, employees may work up to 10 hours per day at time for time, or be paid overtime rates in accordance with this Agreement, to a maximum accrued time of 40 hours. All the hours after that will be paid overtime in accordance with this Agreement. |
| 2012 and 2015 agreement | 2018 agreement | Current Agreement |
| Part B, Clause 34.3.8 | Part B, Clause 34.3.8 | Clause 42A.3(l) |
| As agreed between the parties, time off during working hours equivalent to 1.5 times the amount of time worked may be allowed in lieu of payment for overtime. Provided that such equivalent time off will not be taken without the prior approval of the employer. Provided further that, at the discretion of the employer, such equivalent time off may be taken consecutively with a period of annual leave. | As agreed between the parties, time off during working hours equivalent to 1.5 times the amount of time worked may be allowed in lieu of payment for overtime. Provided that such equivalent time off will not be taken without prior approval employer. Provided further that, at the discretion of the employer, such equivalent time off may be taken consecutively with a period of annual leave. Unless otherwise agreed with the employee, time will be paid out at the relevant penalty rate if it has not been taken within four weeks of the overtime being worked. | Time off in lieu Time off in lieu of overtime may be taken by agreement, at time and a half for time, and to be taken at agreed times, or may be taken with annual leave, at the discretion of Council. Unless otherwise agreed, time off in lieu will be paid out at the relevant penalty rates if it has not been taken within 4 weeks of the overtime being worked. |
[1] [2024] FWCFB 235 at [112].
[2] AMA v the Royal Women’s Hospital[2022] FWCFB 7 at [29].
[3] [2020] FCAFC 123; (2020) 298 IR 50 at [65].
[4] [2017] FWCFB 3005 at [114].
[5] (2018) 264 FCR at [197].
[6] See principle 5 in AMA v The Royal Women’s Hospital [2022] FWCFB at [29].
[7] See Maribyrnong City Council v ASU [2019] FCA 773, 369 705 at [4].
[8] See Maribyrnong City Council v ASU [2019] FCA 773, 369 705 at [4].
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