Australian Nursing and Midwifery Federation v Correct Care Australasia Pty Ltd
[2017] FWC 4775
•3 OCTOBER 2017
| [2017] FWC 4775 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.217—Enterprise agreement
Australian Nursing and Midwifery Federation
v
Correct Care Australasia Pty Ltd
(AG2017/487)
Health and welfare services | |
COMMISSIONER CRIBB | MELBOURNE, 3 OCTOBER 2017 |
Application for variation of the GEO Care Australia Nurses (Victorian Prisons) Enterprise Agreement 2013.
[1] The Australian Nursing and Midwifery Federation (ANMF, the union) has made an application under section 217 of the Fair Work Act 2009 (the Act) to vary the GEO Care Australia Nurses (Victorian Prisons) Enterprise Agreement 2013 1 (the Agreement). The application was made on the grounds that there was an ambiguity in relation to two matters - the application of clause 24.1 (shift work) and clause 23.3 which provides for overtime. The respondent employer, Correct Care Australasia Pty Ltd (Correct Care) opposed the application on the basis that there was no ambiguity in either clause 24.1 or clause 23.3.
Statement of Agreed Facts and Facts in Dispute
[2] Before turning to the legislative framework, at the request of the Commission, ahead of the hearing on 11 September 2017, the parties developed a Statement of agreed and disputed facts. 2
[3] In this Statement, the parties agreed that, prior to its acquisition by Correct Care, GEO Care paid:
- A 50% loading was paid on all shifts worked on a weekend (midnight Friday to midnight Sunday) regardless of the spread of hours worked. 3
- No shift work loading was paid for shifts worked on a (non-public holiday) week day morning. 4
- A 15% shift work loading was paid for any hours worked after 7:00 pm on a week day. 5
- GEO Care was acquired by Correct Care in about February 2014 and a new time and attendance system was introduced in August 2015. 6
[4] The parties also agreed that, since 2013, Correct Care pays:
- A 50% shift work loading on all shifts worked on a weekend (midnight Friday to midnight Sunday) regardless of the spread of hours worked. 7
- A 50% shift loading for hours worked on a public holiday which commences after 12 noon and finishes after 7:00 pm. 8
- A 50% shift work loading for all hours worked during the night on a public holiday regardless of whether or not the shift finishes before 7:00 am. 9
- A 15% shift work loading for any hours worked after 7:00 pm on a weekday (consistent with GEO Care’s approach). 10 There is no dispute between the parties in relation to this payment.11
- For shifts worked during the night on weekdays, a 15% shift work loading for all hours worked up to 7:00 am regardless of whether the shift finishes at 7:00 am or after 7:00 am. 12
- Correct Care does not pay any shift work loading for hours worked on a weekday morning shift on a (weekday) public holiday. 13
- Correct Care does not pay a shift loading for AM shifts. 14 There is no dispute between the parties about this payment.15
[5] The facts and issues in dispute concern three areas. These are:
1. Week day public holidays - the parties have a different view about whether or not GEO Care consistently paid a 50% loading for all hours worked on a week day public holiday regardless of the spread of hours. The ANMF’s view is that the proper construction of the Agreement results in payment of a 50% loading for all hours worked on a week day public holiday. Correct Care does not agree. 16
2. Weekend work - a 50% shift loading is paid on all shifts worked on a weekend regardless of the spread of hours. The union contends that this is the correct payment required by the Agreement. Correct Care disagrees and says that it is a discretionary additional payment. 17
3. Weekday night shifts - both parties agreed that, under GEO Care, a shift work loading was paid for the whole shift regardless of whether the shift concluded at or after 7:00 am. It is the ANMF’s view that this is the correct payment which is required by the Agreement. Correct Care denies that this is required by the Agreement and states that payment of the 15% loading on night shift is required to be paid only up to 7:00 am. If the loading is paid for any time beyond 7:00 am, it would be a discretionary additional payment. 18
Legislative framework
[6] Section 217 of the Act provides:
“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty
(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”
[7] The application was made by an employee organisation covered by the Agreement (the ANMF) which therefore has standing to make the application.
[8] The legal principles to be applied by the Commission when determining an application under section 217 are established and well settled. The parties generally held a common view in relation to the applicable principles.
[9] However, the ANMF also contended that, in relation to the use of extrinsic material, the union’s evidence in relation to the bargaining meetings is not submitted as evidence of what the ANMF was subjectively trying to achieve. Rather, it was stated to be evidence of a negative. It was said that three facts were known to the parties - that clause 23 was in the terms it was; that neither side raised a claim in bargaining in relation to that clause and thirdly, that it is clearly a notorious fact that clause 24 is in the same terms. The ANMF submitted that the point being made was slightly more nuanced than simply saying that regard cannot be had to extrinsic material. It was argued that extrinsic material of this kind, which goes to objective background facts, can be put in in order to demonstrate ambiguity. If an ambiguity does not arise, one cannot then rely on the extrinsic material to countermand the clear words of the agreement. 19
[10] Therefore, the legal principles to be applied in considering an application under section 217 may be summarised as follows:
- The Commission should approach an application in two stages. First, as a jurisdictional pre-requisite, it should identify whether there is an uncertainty or ambiguity. Secondly, if an ambiguity or uncertainty is identified, it should consider whether to exercise its discretion to vary the agreement, the subject of the application; 20
- The process of identifying ambiguity or uncertainty involves making an objective assessment of the words used in the provisions under examination. The words used are construed having regard to their context; 21
- The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention; 22
- However, the Commission must make a positive finding that an agreement, the subject of an application under section 217 is ambiguous or uncertain. Prima facie satisfaction of ambiguity or uncertainty is not sufficient; 23
- The mere existence of rival contentions as to the proper construction of the terms of an agreement will also be an insufficient basis to conclude the existence of ambiguity or uncertainty. Such contentions may be self-serving. The task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning; 24
- Once an ambiguity or uncertainty has been identified, in exercising the discretion whether to vary the agreement, the Commission is to have regard to the mutual intention of the parties at the time the agreement was made. 25
[11] I respectfully adopt these principles.
Alleged ambiguities
[12] It was submitted by the ANMF that the Agreement contains two ambiguities. The first ambiguity concerns the application of clause 24.1, which deals with shift work. The second ambiguity relates to clause 23.3 and the application of overtime rates. I will deal with each of the alleged ambiguities in turn.
First ambiguity
ANMF
[13] The ANMF argued that clause 24 of the Agreement was ambiguous in that there were two possible constructions in relation to clause 24.1 and also in relation to clause 24.2.
[14] The relevant clauses of the Agreement provide as follows:
“21. ORDINARY HOURS OF WORK
21.1. General
21.1 .1. At a number of Centres, the Company's usual operational requirements are to operate 24 hours a day for seven days per week.
21.1.2. The structuring of hours may vary depending upon operational needs and will normally consist of the following patterns:
(a) Day work;
(b) Shift work (rotating or non-rotating); or
(c) Seven day continuous shift work.”
…
“24. SHIFTWORK
24.1. An Employee may be required to work shifts, being any work (excluding overtime) which is rostered to commence after 12 noon and finishes after 7:00pm on any day or finishes before 7:00 am on any day. Shift work may be either on a fixed shift or rotating shift basis and may include rotating shift work on a roster 24 hours per day 7 days per week.
24.2. While performing shift work, an Employee (including a Casual Employee) shall be paid the following shift work loadings:
(a) For all ordinary time worked after 7:00pm Monday-Friday or ordinary time worked before 7:00am Monday to Friday - 15% in addition to their ordinary rate of pay;
(b) For all ordinary time worked from midnight Friday to midnight Sunday and on Public Holidays- 50% in addition to their ordinary rate of pay.”
[15] Ms Kelly commenced the submissions on behalf of the ANMF with clause 21.1.1 of the Agreement which provides that a number of centres would operate 24 hours a day, 7 days a week. It was stated that, although the structuring of hours would vary, it would normally be one of three patterns. The first pattern would be day work (a day worker) with the other two patterns being shiftwork (rotating or nonrotating) and seven day continuous shiftwork. The ANMF contended that employees would either undertake day work or a different pattern of work – shiftwork. It was also indicated that, as clause 21.1.1 did not contain a span of hours, ordinary hours to be worked at any time of the day, seven days a week. 26
[16] It was submitted by the ANMF that clause 24.1 was in effect, a definition of shift work, the performance of which was required prior to any entitlement to the shift allowances set out in clause 24.2 (a) and (b). The union contended that clause 24.1 has two parts with the first part defining shift work as work which is rostered to commence after 12 noon and to finish after 7:00 pm or which finishes before 7:00 am. This was said to appear to be an amalgam of what would traditionally have been an afternoon and night shift. As there is no definition of day, afternoon or night shift in the Agreement, the ANMF stated that it was open to an inference that the move away from the traditional shift pattern has resulted in a clause which amalgamated the two concepts and tries to deal with it as being a shift other than a day shift. 27 It was stated that, read literally, this confines shift work to work within the period between 12:01 pm and 6:59 am.28
[17] The second sentence of clause 24.1 was said to provide that shift work includes work that is either on a fixed or a rotating shift basis and may include a rotating 24 hours, 7 days a week. This was described as linking back to clause 21.1.1 which provides for two patterns of work – day work or shiftwork. 29
[18] The union contended that, on one reading of clause 24.1, the second sentence of clause 24.1 expand the definition of a shift in the first sentence. This was said to result in shift work being either a shift that falls within the hours set out in the first sentence or work that is performed on either a fixed or rotating shift which may include a 24/7 rotating roster. It was stated that, on this construction, shift work was not confined by the hours when the shift work is worked but that it also includes all work that is performed on a fixed or rotating shift basis. 30
[19] It was argued that the alternative construction was that the second sentence of clause 24.1 only applied to work within the shift work span of hours set out in the first sentence. The second sentence was said to define the roster patterns that may be utilised for such work. The union contended that, read this way, the second sentence was not a definition of shift work. Rather, it prescribed the conditions under which shift work may be performed. Only work within the parameters set in the first sentence was said to be shift work under the Agreement. 31
[20] As both interpretations were argued to be open on the words of clause 24.1, the ANMF submitted that clause 24.1 was ambiguous on its face. 32
[21] Further, the union contended that the clause must be read in the context of the Agreement as a whole. It was stated that doing so confirmed the ambiguity. This was on the basis that clause 21.1.2 sets out the two patterns of work - day work and shift work. The ANMF argued that clause 21.1.2 confirmed the first interpretation which was that shift work would include work rostered within the span of hours together with work performed on fixed and rotating shifts. It was stated that this would therefore include work outside of the span of hours set out in the first sentence of clause 24.1. 33
[22] The ANMF submitted that, if the second interpretation of clause 24.1 was adopted, shift work would be limited to shifts commencing after 12.00 pm and finishing after 7.00 pm on the same day or before 7.00 am the following day. It was argued that this interpretation resulted in a gap for shifts that were not day work or shift work as defined. The effect of this was said to exclude the employer’s ability to roster afternoon and morning shifts. The union contended that this was inconsistent with Correct Care’s business which included 24/7 locations. 34
[23] It was also argued that the ambiguity was confirmed by clause 24.2 of the Agreement. This was because of the words “while performing shift work”. It was argued that these words are a condition precedent for the payment of the allowances when an employee is working shift work. The ANMF submitted that there were two meanings and in relation to the words “while performing shift work” in clause 24.2. On one reading, as advanced by Correct Care, it meant that “while performing shift work” resulted in the loading supplying only when work was performed on a shift as defined in clause 24.1. Therefore, if an employee is not on a shift which is rostered to commence afternoon I’m which finishes between 7:00 pm and 7:00 am, there is no shift loading payable. 35
[24] The second interpretation was that the allowances apply when an employee works a pattern within the meaning of clause 21.1.2 that is shiftwork. It was argued that the reference to shiftwork in clause 24.2 can be read as a reference to one of the patterns in clause 21.1.2. 36
[25] Further, in support of this contention that those two readings are available and so, therefore, an ambiguity exists, the ANMF referred to a number of clauses in the modern award. The award minima, as set out in clauses 26 and 32 were said to be that penalties for weekends and public holidays were payable for all ordinary hours worked regardless of the time of day. The ANMF then referred to clause 24.2 and stated that this was the only place in the Agreement where a shift loading, weekend penalty and public holiday loading was provided for. It was argued that, if Correct Care’s contention was right, in addition to the abolition of a span of hours, there is a reduction in the span of time when weekend penalty rates and public holiday loadings are paid. 37
[26] The ANMF then pondered on whether, with the knowledge of the award, the parties to the Agreement had truly intended that employees who work under the award would be paid a higher weekend penalty and would be paid for all hours worked, both on a weekend and on a public holiday. The answer was said to be “absolutely and unequivocably no.” 38 The union argued that the reduction in benefits is so substantial that it cannot have been contemplated by the parties that that was how the Agreement was to operate.39 Further, it was argued that this led to absurd results including that an employee working shift work until 8:00 am would not get anything whilst an employee who finishes their shift at 6:55 am will.40
[27] This proposition was argued to be supported by the Applicant’s Table of Payment Comparisons 41 which was said to show that the 50% weekend penalty has always been paid for all ordinary hours worked. It was stated that Correct Care has continued this practice, despite arguing that it is an over Agreement entitlement.42 Further, with respect to this issue, the union contended that the Commission was entitled to draw an inference from the fact that the Respondent did not call any evidence from GEO Care in terms of this payment.43
[28] In relation to the 50% penalty for work on a weekday public holiday, the union stated that, on the basis of information from its members, there was not a variation in payment of this penalty. It was noted that Correct Care had not undertaken an analysis of GEO Care’s payment practices but had relied on three examples which showed different payment methods. 44
[29] With respect to the terms of the allowance in clause 24.2(b), the union contended that it was payable based on the day on which the work is being performed (weekends and public holidays). The second possible meaning of clause 24.1 was said to result in the allowance only being paid when an employee, on a weekend or public holiday, works on the shift that commences after 12 noon and either finishes after 7:00 pm on the same day or before 7:00 am the following day. In addition, the union argued that, as clause 24.2(b) is the only penalty provided for weekend work, it is therefore not payable for all hours worked and so employees only receive their ordinary hourly rate for working weekends. 45
[30] In response to Correct Care’s contention that the union’s claim was “rank opportunism” and a “waste of time”, the ANMF highlighted the email traffic between the company and an employee regarding this issue in December 2015. It was stated that the ANMF then lodged a dispute in March 2016. The assertion that the complaint had been confected was therefore rejected. 46
[31] In terms of the first ambiguity, the evidence of Mr Megennis, Industrial Officer with the ANMF, confirmed that clauses 24.1 and 24.2 in the current Agreement were effectively the same as clauses 23.1 and 23.2 in the 2009 Agreement 47. The difference was that clauses 23.2 (b) and (c) were not in the current Agreement because those subclauses were out of date. It was agreed that the members had voted up and agreed with clause 23.1 in the 2009 negotiations and with clause 24.1 in the 2013 negotiations. With respect to the genesis of clause 23 in the 2009 Agreement, Mr Megennis was unsure but thought that the prior agreement had some variation of that clause and that the clause stemmed from the 2004 Agreement or maybe prior to that.48
[32] With respect to the bargaining notes for the current Agreement, Mr Megennis explained that they did not show that there was a major problem with the old clause 23 because the union did not understand that there were any issues with the clause. 49
[33] Mr Megennis gave evidence that there was a change to the way weekend penalties were paid by Correct Care. Up until that point, the union was said to have understood that penalty payments were paid – either the 15% or the 50%. It was acknowledged that Ms Lee’s statement said that Correct Care paid the shift loading on weekends. Mr Megennis acknowledged that he did not have personal knowledge of whether or not they were being paid. 50
[34] It was also stated by Mr Megennis that Correct Care had ceased paying shift allowance for weekday AM shifts. It was Mr Megennis’s view that the Agreement was ambiguous but that the union understood that a weekday AM shift allowance had been paid for many years. Mr Megennis gave evidence that he understood that, in Ms Lee’s statement, it was said that a weekday AM shift allowance had never been paid and that Correct Care was not obliged to pay it. 51
[35] With respect to shift penalties for weekend work, Mr Megennis agreed that Correct Care has been paying it for ordinary hours worked on weekends. 52 However, it was said to be Mr Megennis’ understanding that the 15% loading appeared not to be paid for weekend work and work on a public holiday. Mr Megennis indicated that the members were being paid both the 50% and 15% penalties but that, in early 2016, Correct Care ceased the 15% in certain circumstances. It was his understanding that the 50% penalty has always been paid/continues to be paid.53 Mr Megennis disagreed that payment of a 15% weekend penalty was an over agreement payment made by GEO because, across the industry, weekend work always incorporates a 15% loading for ordinary hours worked.54
[36] Further, Mr Megennis did not accept Correct Care’s contention that they were not required to pay a 15% loading on weekday night shifts which concluded at or after 7.00 am as opposed to 7.00 am. It was the union’s view that it should be paid for all shift work hours. 55
Correct Care
[37] On the other hand, Mr Harrington on behalf of Correct Care argued that there was no ambiguity in relation to clause 24.1, 24.2 or 23. It was submitted that the 1st step was to read the clause and to ask whether it made sense. The first sentence was said to identify the hours which define shift work by referring to the span of hours of the shift work. This was said to be done through the word “being” in the phrase “shifts being any work……” It was stated that the span of hours provides for two distinct time differentiated shifts – one that commences after 12:00 pm and which finishes after 7:00 pm (afternoon shift) and the other finishes before 7:00 am on a particular day (night shift). Correct Care contended that the second sentence of clause 24.1 addresses a different issue and sets out the basis upon which the shift work may be rostered – on a fixed or rotating shift basis. It was stated that this sentence does not, as a matter of construction, seek to bear upon the time based shift definitions set out in the first sentence. It was argued that each sentence of clause 24.1 performs a different function but does not stand alone. 56
[38] Correct Care rejected the ANMF’s submissions that clause 24.1 was ambiguous because it was susceptible to more than one meaning. It was argued that the union’s first construction was confected as it advanced a construction that strains the language of clause 24.1 and is fundamentally flawed, and by reading a disjunction between the two sentences in order to confuse/expand the definition of shift work. 57 With respect to the ANMF’s alternative construction of clause 24.1, Correct Care, it was stated that this was an attempt to set up competing or rival constructions so as to argue ambiguity.58 Correct Care agreed with the ANMF’s submissions that the only proper and objective reading of clause 24.1 was the union’s alternative/second construction.59
[39] Further, it was stated that a reading of the entire Agreement does not confirm any ambiguity and that there is no need to read beyond clause 24.1 because there is no ambiguity in that clause. 60 In terms of the ANMF’s reference to clause 21.2 in support of their contention concerning ambiguity, it was stated that this clause sets out three different patterns of hours and that there was harmony between clause 21.1.2 and clause 24.1 rather than conflict between the two clauses.61
[40] In relation to the ANMF’s submissions regarding clause 24.2, these were rejected on the basis that clause 24.2 explains what loading will be paid when shift work is worked and the different time periods for which a loading is paid. 62
[41] With respect to the ANMF’s argument in relation to the modern award, Correct Care stated that the modern award was not in place at the time of the 2009 Agreement, but rather the earlier pre-reform award. It was contended that therefore, the modern award could not have had any impact on the 2009 Agreement. The 2013 Agreement had the modern award sitting in the background but the clauses in question did not change in the 2013 Agreement. 63
[42] Ms Lee, the manager, Human Resources and Organisational Development, gave evidence that, at the Metropolitan Remand Centre, there were employees who worked only dayshift/it is a rotating roster and no one is guaranteed only dayshift. Employees who worked other than dayshift worked a rotating roster i.e. generally a mix of afternoon, morning or overnight shifts. It was stated that afternoon shift generally started after 12 noon and finished into the evening but not overnight. Nightshift start times were said to vary but would usually go into the next morning. 64
[43] Ms Lee explained that, where a facility did not operate overnight, there were employees who worked only dayshift. This was because the starting and finishing times would expand to cover a non-24 hour service delivery and there was no overnight shift. It was stated that this was the definition that Ms Lee personally applied to the term dayshift. 65
[44] With respect to shift lengths, Ms Lee explained that there were various shift lengths but that the established shift lengths were 8 hours, 10 hours or 12 hours. Both day workers and non-day workers could work each of these shift lengths. 66
[45] Ms Lee stated that Correct Care adopted the position, as soon as it took over the business, that it was not required to pay a 50% shift work loading for all hours worked on a weekend (clause 24.2 (b)). This was following having read the Agreement and it was a decision made by the executive management team. 67 It was explained that Ms Lee had spoken to GEO Care about what they were paying when Correct Care commenced management. This was stated to have been to pay a 50% shift loading on all shifts worked on a weekend, regardless of the spread of hours worked or whether the shift work definition in clause 24.1 was met. It was confirmed that Correct Care considered it to be an over award payment that had been made by GEO Care.68
[46] It was stated by Ms Lee that Correct Care is only required to pay a weekend penalty for a shift which is rostered to commence after 12 noon and finish after 7:00 pm before 7:00 am. Ms Lee explained that this was because no penalties were required to be paid unless the shift met the definition of shift work in clause 24.1. It was confirmed that this was also Correct Care’s position regarding public holidays and the 15% shift allowance in clause 24.2 (a). 69
[47] Ms Lee explained that, prior to exchanging ownership, Correct Care had limited access to GEO Care’s time and attendance system but had managed to obtain the majority of timesheets. In terms of payslips, those needed to be requested individually. It was indicated that Ms Lee had sought payslips for the employees set out in her witness statement. 70
[48] In relation to weekday public holidays, it was Ms Lee’s evidence that GEO Care had been inconsistent in its payment of shift loadings on weekday public holidays. It was stated that some employees were paid either a 15% or 50% shift penalty for hours worked regardless of whether or not the shift met the shift work definition in clause 24.1. Other employees were not paid any shift loading for work on a weekday public holiday. Ms Lee was unable to say how many employees fell into each of the three categories. 71 Ms Lee confirmed that Correct Care has continued to pay a 50% loading on all shifts on a weekend despite believing that it is not legally obliged to do so.72
[49] It was agreed that GEO Care had paid the weekday night shift penalty for the whole of the shift regardless of when it finished. This was said to have been on the entire shift regardless of whether the shift finished at 7:00 am or after 7:00 am. Ms Lee accepted that Correct Care is paying the 15% shift loading differently now in that it is paid only on that part of the shift that falls between 7:00 pm and 7:00 am. Any part of the shift that goes beyond 7:00 am is paid at ordinary time rate. It was stated that Correct Care was not required to make that payment as clause 24.2 (a) is limited to a shift as described in clause 24.1. 73 Ms Lee accepted that, on Correct Care’s interpretation of the Agreement, an employee whose shift ended at 8:00 am would not be entitled to a shift allowance whereas an employee who finished at 6:55 am would be entitled to a shift loading.74
[50] With respect to weekday day shifts (AM shifts), it was stated that GEO Care had not paid any shift loading for shifts worked on a non-public holiday weekday morning. This practice has been followed by Correct Care. 75
Considerations and conclusions
[51] As indicated in paragraph 5 above, consideration of a section 217 application is a two-stage process. The first stage is a jurisdictional prerequisite and it requires the Commission to identify whether there is an uncertainty or ambiguity i.e. “make an objective judgement as to whether the wording of a provision(s) is susceptible to more than one meaning.” 76
[52] I am not satisfied that clauses 24.1 and 24.2 are capable of more than one reading and are therefore ambiguous. This is because the meaning of both of these clauses is clear. Clause 24.1 defines shift work as work which is rostered either to start after 12 noon and finish after 7:00 pm or to finish before 7:00 am. The second part of the clause states that shift work may be either on a fixed or a rotating shift basis and may include a 24/7 rotating shift roster. The first part of the clause, therefore, defines shift work by setting out the span of hours. The second part of the clause sets out the basis on which the hours can be worked, e.g. fixed or rotating shifts. Each part of the clause has different work to do and each is clear in terms of their respective meaning.
[53] Clause 24.2 then sets out the loadings to be paid when an employee works shift work on particular days and times. For all ordinary time worked after 7:00 pm Monday - Friday or before 7:00 am Monday to Friday, a loading of 15% is payable (clause 24.1(a)). It is noted that clause 24.2(a) contains an “or”, the first part of which applies to a shift which finishes after 7:00 am.
[54] Clause 24.2(b) applies to an employee who performs shift work on weekends and public holidays. As shift work is defined in clause 24.1, it is only employees who perform work in accordance with clause 24.1 who are entitled to be paid the shift work loading on weekends and public holidays as set out in clause 24.2(b).
[55] For these reasons, I find that the operation of clause 24 is not ambiguous. Therefore, the jurisdictional prerequisite in relation to this alleged ambiguity has not been made out.
Second alleged ambiguity
[56] The second ambiguity was said to lie in clause 23.3 which provides when overtime is payable. Clauses 23.3 and 21.2.1 (which is referred to in clause 23.3) are set out below. The union has also made reference to clauses 21.1.2 and 21.2.4 and so they are also to be found below:
“21. ORDINARY HOURS OF WORK
21.1. General
21.1.2. The structuring of hours may vary depending upon operational needs and will normally consist of the following patterns:
(a) Day work;
(b) Shift work (rotating or non-rotating); or
(c) Seven day continuous shift work.
21.2. Total Working Hours
21.2.1. Ordinary hours of work for Full-time Employees are 76 hours per fortnight, including paid meal breaks, plus reasonable additional hours not to exceed 4 hours per fortnight, in order to meet operational requirements (equivalent to 80 hours in a fortnight). Ordinary hours of work shall not exceed 12 hours in any 24 hour period.
…
21.2.4. Hours will be rostered and may be worked on any or all days of the week including Saturdays, Sundays and Public Holidays, other than as specified in any other part of this Agreement.”
“23. OVERTIME
…
23.3. All time worked by the Employee in excess of Full-time Hours of Work as set out in Clause 21.2.1 shall be paid for at a rate of time and a half for the first 4 hours then double time thereafter. Provided that, following the third anniversary of the commencement of the Agreement, payment for those excess hours will be made at a rate of time and a half for the first 2 hours then double time thereafter.”
ANMF
[57] It was submitted by the union that the ambiguity or uncertainty arises on its face because clause 23.3 is not clear as to whether “full-time hours of work” means only rostered ordinary hours or both rostered and additional hours. It was accepted that there is limited evidence but pointed to the email traffic between an employee and the company. 77 The ANMF argued that there are two methods of applying clause 23.3. The first way is to apply the overtime rates to the additional shift, regardless of how many hours the employee had worked at the time the additional shift was worked.78 The second method was said to be to pay the overtime rates once the employee has reached 76 hours for the fortnight regardless of whether the hours worked were on rostered or on additional shifts.79
[58] The effect of the first method is compared with the second method was said to be that, if all hours are counted, regardless of whether they are overtime ordinary hours, when the employee gets to the end of the fortnight and the employee is rostered for ordinary hours on the weekend, the employee does not receive both the weekend penalty and the overtime rate. The employee is paid overtime only which is lower than the weekend penalty and therefore the employee suffers a material financial disadvantage. 80
[59] The ANMF stated that it was open to the Commission to find that the clause is not ambiguous and that overtime is paid after an employee works 80 rostered hours a fortnight. It was said that the union would be content if the Commission took that approach and that the union is fundamental view was that this clause is quite clear. 81 In the alternative, it was open to the Commission to find that there is an ambiguity but that, as there is insufficient material before the Commission, the Commission declines to vary the Agreement.82
[60] Mr Megennis confirmed that the notes of the 2013 negotiation meetings did not reveal any substantive discussion about clause 23.3 (Overtime). Mr Megennis did not have a particular view on clause 23.3. 83
Correct Care
[61] For its part, Correct Care contended that the attack on clause 23.3 was highly disingenuous, unmeritorious and was not supported by the evidence. It was stated that there was no ambiguity and Correct Care asserted that the inclusion of clause 23.3 was simply a diversion from the real focus of the union’s case – clause 24.1. 84 It was argued that there was nothing in the language or text of clause 23.3 to support the union’s contention that one reading of the clause requires overtime to be paid on the actual shift during which the excess hours are worked.
[62] Further, it was argued that the union’s complaint regarding this clause was, “when you lift the fig leaf”, about attempting to obtain a different outcome to what was negotiated and agreed by the parties in the 2013 negotiations. Correct Care submitted that there is no ambiguity or uncertainty arising out of a fair reading of clause 23.3. This was because clause 23.3 obliges Correct Care to pay overtime in excess of the aggregation of 76 ordinary hours for full-time employees plus up to 4 additional hours. 85
[63] It was Ms Lee’s evidence that the ordinary hours of work are 76 hours plus 4 additional hours which are rostered. 86 Overtime was said to be allocated based on employees’ preference/availability and is added to their rosters. However, the overtime was not notated as such on the rosters. Employees are then paid on the basis of their timesheets which usually come out of the roster.87 Ms Lee thought that what Ms Vainieri was saying in her email was that an employee’s ordinary hours are treated as the first 80 hours that that they have worked with the overtime penalty applied after that.88
Considerations and conclusions
[64] With respect to the first stage in considering a section 217 application, I am not satisfied that clause 23.3 is ambiguous or uncertain. This is because the meaning of the clause in relation to when overtime is payable is clear. The clause provides that overtime is payable for all time worked over 76 hours per fortnight plus four additional hours i.e. over 80 hours per fortnight. This is regardless of the provenance of the 80 hours i.e. whether the hours are ordinary hours or additional hours.
[65] For these reasons, I find that the operation of clause 23.3 is not ambiguous or uncertain. Therefore, the jurisdictional prerequisite in relation to this alleged ambiguity has not been made out.
[66] On the basis of the findings in relation to each of the two alleged ambiguities or uncertainties, as the jurisdictional prerequisites have not been made out in respect of either alleged ambiguity, the union’s application is dismissed.
Appearances:
S Kelly of Counsel for the Australian Nursing and Midwifery Federation
N Harrington of Counsel for Correct Care Australasia Pty Ltd
Hearing details:
2017.
Melbourne:
August 1;
September 11.
1 AE404497
2 Exhibit A3/R1
3 Ibid at paragraph 12
4 Ibid at paragraph 13
5 Ibid at paragraph 14
6 Ibid at paragraphs 15 - 17
7 Ibid at paragraph 20 and 24
8 Ibid at paragraph 22
9 Ibid at paragraph 23
10 Ibid at paragraph 26 and Exhibit A4
11 Exhibit A4
12 Exhibit A3/R1 at paragraph 27
13 Ibid at paragraph 21
14 Exhibit A4
15 Ibid
16 Ibid
17 Ibid
18 Ibid, Exhibit R3 at paragraph 19(g) and Transcript PN 839 - 848 and 1078 - 1141
19 Transcript PN 905 - 931
20 Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004, PR917548, 9 May 2002, at [28], [32] and [35]
21 Ibid at [29]
22 Ibid at [31]
23 Colnvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57]
24 Civil Construction Corporation Enterprise Agreement 2002, PR939346; SJ Higgins v CFMEU, PR903843; RE CFMEU Appeal, Print R2431
25 Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004, PR917548, 9 May 2002, at [32]
26 Transcript PN 933-943
27 Ibid at PN 943 – 944
28 Exhibit A1 at paragraphs 9 - 12
29 Transcript PN 945
30 Exhibit A1 at paragraphs 15 - 16
31 Ibid at paragraph 17
32 Ibid at paragraph 18
33 Ibid at paragraphs 19 - 22
34 Ibid at paragraph 23
35 Exhibit A1 at paragraphs 24 – 26 and Transcript PN 946 – 947
36 Transcript PN 947 and Exhibit A1 at paragraphs 24 – 26
37 Ibid at PN 948 – 952 and 1061
38 Ibid at PN 953
39 Ibid at PN 953
40 Ibid at PN 959 – 960
41 Exhibit A4
42 Transcript PN 954 – 955
43 Ibid at PN 956
44 Transcript PN 957
45 Ibid at paragraphs 27 - 28
46 Transcript PN 1050-1052 and 1058
47 Pacific Rim Emplopyment (Nurses) Collective Agreement 2009
48 Transcript PN 345 - 367 and 510 - 511
49 Ibid at PN 368 - 369 and Exhibit A5 at Attachment BM 3
50 Ibid at PN 418 - 431 and Exhibit A5 at paragraph 10
51 Ibid at PN 450 - 457 and ibid at paragraph 12
52 Ibid at PN 458 - 461 and ibid at paragraph 15
53 Ibid at PN 458 - 470 and ibid
54 Ibid at PN 590 - 593
55 Ibid at PN 595 - 598
56 Exhibit R2 at paragraphs 10 - 13 and 17 – 18 and Transcript PN 1004, 1006, 1028 – 1030
57 Ibid at paragraphs 14 - 15
58 Ibid at paragraph 16
59 Ibid at paragraph 19
60 Ibid at paragraph 20
61 Ibid at paragraphs 22 - 24
62 Ibid at paragraphs 25 – 27 and Transcript PN 1030 – 1031
63 Transcript PN 1036 – 1037
64 Ibid at PN 750 – 757 and 768 – 769
65 Ibid at PN 772 – 774
66 Transcript PN 758 - 762
67 Transcript PN 775 – 785 and Exhibit R3 at paragraph 21
68 Transcript PN 788 – 793 and 832 and Exhibit R3 paragraph 14
69 Transcript PN 794 – 801 and 834
70 Ibid at PN 802 – 805 and 808 – 809 and Exhibit R3 at paragraph 11
71 Transcript PN 825 – 831 and Exhibit R3 at paragraphs 13 and 19 (a)
72 Transcript PN 833 – 834 and Exhibit R3 at paragraphs 19 (d) and 21
73 Transcript PN 837 – 845 and Exhibit R3 at paragraphs 16-17 and 19 and 1075-1132
74 Transcript PN 846 – 848 and Exhibit R3 at paragraph 19
75 Exhibit R3 at paragraphs 15 and 19 (e)
76 Fosterville Gold Mine Pty Ltd [2011] FWA 316 at paragraph [5].
77 Transcript PN 986 and 970 and Exhibit A5 at BM 4 and Exhibit A1 at paragraph 36
78 Transcript PN 968 and Exhibit A1 at paragraphs 36 – 41
79 Exhibit A1 at paragraphs 36 - 41
80 Transcript PN 969
81 Ibid at PN 972 – 973 and 984 – 987
82 Ibid at PN 975 and 988
83 Ibid at PN 479 - 498
84 Ibid at PN 1004 – 1005 and 1041
85 Exhibit R2 at paragraphs 33 - 44 and Transcript PN 1042-1044
86 Transcript PN 861 – 864
87 Ibid at PN 877 – 878 and 880
88 Ibid at PN 886 – 887 and Exhibit A5 at attachment BM 4
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