Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority T/A Queensland Rail
[2023] FWC 2476
•27 SEPTEMBER 2023
| [2023] FWC 2476 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Rail, Tram and Bus Industry Union
v
Queensland Rail Transit Authority T/A Queensland Rail
(C2022/7191)
| COMMISSIONER SPENCER | BRISBANE, 27 SEPTEMBER 2023 |
Application to deal with a dispute - Part time provisions
INTRODUCTION
This Decision concerns an application brought by the Australian Rail, Tram and Bus Industry Union (the Applicant/Union/ARTBU). The application was brought by the Union in relation to a dispute with Queensland Rail (the Respondent/Employer) pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act) and clause 23 (the dispute resolution procedure) of the Queensland Rail Administrative, Professional and Technical Enterprise Agreement 2020 (the Agreement).
The dispute was filed on 28 October 2022. Three conferences by telephone were held in the matter. The parties participated in without prejudice negotiations at these conferences. An agreement was not able to be reached between the parties.
The dispute resolution procedure provides for arbitration by the Fair Work Commission (the Commission) where the dispute remains unresolved following conciliation. Accordingly, the parties had discussions and agreed on consent direction for the filing of material in relation to a hearing of the dispute, which was held before me. Following the hearing, directions were issued for the filing of closing submissions.
BACKGROUND
In summary terms, the dispute related to the payment of overtime for additional hours worked outside of contracted hours for two of the Applicant’s members, Ms Breanne Love and Ms Janine Currie (the Employees). As set out in the agreed statement of facts provided to the Commission, the Employees’ employment contracts provided a base arrangement of 20 hours to be worked per week, which could be amended by mutual agreement between the employee and the Employer. Such amendments would occur occasionally, via an exchange of emails and provision of the forthcoming fortnight’s roster. The Employees would then have the opportunity to accept any offer by the Employer to work additional hours reflected in the roster. Where additional hours were worked, the Employees were not paid overtime rates for these additional hours in accordance with clause 26.10 of the Agreement.
The Union contended that this arrangement was not compliant with clause 26.10 of the Agreement, which provides that part-time employees who work in excess of their rostered ordinary hours are to be paid overtime rates for the excess hours. The Union argued that the relevant clauses were being improperly interpreted to the disadvantage of its members.
The Employer argued that, in accordance with clause 26.6 of the Agreement, the arrangements with the Employees to work additional hours represented an amendment, by mutual agreement, to the Employees’ agreed number of ordinary hours per week, the Employer argued therefore not enlivening clause 26.10 nor an entitlement to overtime rates. The Employer stated it was following the practice and procedure that had been in place for some years, and that it was exercising this in accordance with the correct interpretation of the relevant provisions of the Agreement.
The parties confirmed, in seeking and being granted a series of extensions to the directions for the filing of submissions and evidence, that the Agreement was currently under negotiation and that they may have come to a consensus in relation to the application of the provision.
Both of the Employees worked as travel consultants in the Queensland Rail Cairns office. Ms Love was initially engaged in May 2018 and agreed in writing to work part-time, 20 hours per week. Ms Currie was initially engaged in February 2017 and similarly agreed in writing to work part-time, 20 hours per week.
THE DISPUTE
On the basis of the agreed facts, the parties proposed the following agreed questions for arbitration:
1) Where Queensland Rail and the Employees have reached agreement in writing via an exchange of emails to modify their ordinary hours for non-permanent amounts of time, without paying overtime penalties, does this comply with clause 26 of the Agreement?
2) If the answer to 1) is “no”, how do the parties satisfy clause 26.6 of the Agreement?
3) If the answer to 1) is “no”, does Queensland Rail owe Ms Love and Ms Currie backpay for the hours worked? Further, how far back can Ms Love and Ms Currie claim back-payments?
The full bench in AMWU v Berri Pty Ltd (‘Berri’)[1] set out the principles for interpretation for provisions of Enterprise Agreements:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1.The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i)the text of the agreement viewed as a whole;
(ii)the disputed provision’s place and arrangement in the agreement;
(iii)the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i)evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii)notorious facts of which knowledge is to be presumed; and
(iii)evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
Relevant legislative and Agreement provisions
Section 739 of the Act states:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note:The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.
Clause 23 of the Agreement sets out the dispute resolution procedure for disputes under the Agreement. The clause stipulates:
“23 Disputes procedure
23.1In the event of any dispute arising during the course of employment, including disputes in relation to requests for flexible working arrangements, the following procedure will apply.
23.2The objectives of this procedure are the resolution of disputes, or matters that may give rise to a dispute, by measures based on consultation, co-operation and discussion.
23.3An employee may, at any step in the procedure, appoint a representative (including an Organisation or Association). Unless revoked by the employee, the appointment will continue for any subsequent steps of the procedure.
23.4A representative may do all the things which the procedure authorises an employee to do.
23.5While this procedure is being followed, status quo will apply. However, employees will not be required to perform any work where the employee holds a reasonable concern about an imminent risk to the employees’ health or safety.
23.6 The steps in this procedure are as follows:
Step 1: In the event of a dispute an employee/s will attempt to resolve the dispute with the employee’s immediate supervisor. The status quo which existed prior to the emergency of the dispute shall be observed until the dispute is resolved.
Step 2: If the dispute remains unresolved, the relevant manager and/or the manager’s representative, and the employee will attempt to resolve the dispute. Unless otherwise agreed such attempt will take place within 5 days after referral by the employee.
Step 3: If the dispute remains unresolved, or consistent with this Agreement a dispute is commenced at this step, the employee will provide the Business with a written notice of dispute.
The written notice of dispute must contain these details:
(i)The location of the dispute;
(ii)The subject of the dispute;
(iii)The particulars of the dispute;
(iv)At least one proposed resolution of the dispute.
More senior management and the employee will attempt to resolve the dispute.
If the dispute is not resolved, the Business will issue to the employee a written notice setting out the Business’s decision. This notice will include, where relevant, the date of implementation, which will be no earlier than 5 working days from the date of the notice. To avoid doubt, this means the disputed changes will not be implemented until the 5 working day period has ended.
For the purposes of this clause a “working day” shall be any day other than Saturday, Sunday or public holiday.
Step 4: Where the dispute remains unresolved, it may be referred to the Fair Work Commission (FWC).
The FWC will first attempt to resolve the dispute by conciliation. The employee and the Business will act expeditiously and without delay to progress the dispute. Due consideration will be given to any recommendation made by the FWC.
Where the dispute pertains to the application or interpretation of this Agreement or an alleged breach of this Agreement and, where the dispute remains unresolved following conciliation the FWC is authorised to resolve the dispute by arbitration.
To the extent necessary the following powers are conferred upon the FWC:
i)Making procedural directions as to the time, place and conduct of the conciliation or arbitration;
ii)Directing the parties as to the manner of receiving submissions including making formal submissions;
iii)Hearing oral submissions;
iv)Taking written submissions;
v)Hearing evidence by oath or affirmation;
vi)Conducting inspections;
vii)Determine the representation of the parties applying the same criteria as contained in s.596 of the Fair Work Act 2009.
The Business or an employee will not be represented by a legal practitioner during the conciliation and/or arbitration unless:
i)The consent of the other party to such representation is obtained; or
ii)The legal practitioner is a “permanent employee” of the Business or of the employee’s representative Organisation or Association; or
iii)Where the FWC grants leave to appear in accordance with the powers granted herein.
Where the dispute is subject to private arbitration, the decision of the FWC is binding.”
Clause 26 of the Agreement states:
“26 Part-time employment
26.1 Part-time employees are those who work less than full-time hours.
26.2 The minimum shift for a part-time employee is 2 hours.
26.3Part-time employees will work a minimum of 10 hours per week (or less if agreed between the Company and the employee).
26.4Part-time employees receive, on a pro-rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.
26.5At the time of engagement, the Company and employee will agree in writing to the number of ordinary hours to be worked per week.
26.6The agreed number of ordinary hours per week may only be amended by mutual agreement and will be recorded in writing.
26.7Any amendment to the normal weekly pattern of work will be by agreement with the employee/s directly affected.
26.8Where an employee and the Company agree in writing, part-time employment may be converted to full-time, and vice-versa, on a permanent basis or for a specified period of time. If such an employee transfers from full-time to part-time (or vice-versa), all accrued entitlements will be maintained. Following transfer to part-time employment accrual will occur in accordance with the clauses relevant to part-time employment.
26.9Part-time employment can include job sharing, where 2 employees undertake the work of the equivalent of 1 position on a part-time basis i.e. 2 part-time positions equalling the equivalent of 1 full-time role. Job sharing can only occur with the agreement of the Company and the 2 employees concerned.
26.10A part-time employee who works in excess of their rostered ordinary hours will be paid for all such excess hours worked in accordance with the overtime clause.”
Clause 88 of the Agreement provides:
“88 Overtime
Working overtime
88.1 Overtime will be calculated on a daily basis.
88.2for employees who are deemed shift workers, overtime will be paid at the rate of double time.
88.3Employees who are paid at a rate higher than AS54 (or equivalent) are exempt from the overtime provisions of this Agreement, except where otherwise expressly authorised by the Business to be paid overtime.
88.4Employees who are paid at a rate higher than AS5.4 (or equivalent), who are expressly authorised by the Business to be paid overtime, will be paid overtime at the rate of pay of the position in which they worked overtime.
Overtime calculations
88.5Any work performed will be counted for overtime once only on the following basis:
·Time worked in excess or outside an employee’s ordinary working hours.
·Time worked in excess of the maximum hours of the work cycle as determined in clause 74.2.
88.6Overtime will only be paid when it has been expressly authorised in advance of the work performed.
Overtime rates
88.7Overtime will be paid at the rate of time and a-half for the first 3 hours and double the rate from then on. This does not include:
·Overtime worked on Saturday after the completion of a rostered ordinary hours shift. This will be paid at the rate of double time.
·Overtime worked on Sunday. This will be paid at the rate of double time.
·All overtime for shift workers. This will be paid at the rate of double time.
·Overtime worked on public holidays. This will be paid in accordance with the payment for public holidays clause.
Cancellation of overtime shifts
88.8If a rostered overtime shift is cancelled with 12 hours’ notice or less, but with more than 2 hours’ notice, the employee will be paid 1 hour’s pay at the rate applicable to the day but the payment will not be counted for the calculation of overtime.
88.9If an employee is cancelled off a rostered overtime shift, with 2 hours’ notice or less, they will be paid 2 hours’ pay at the rate applicable to the day but the payment will not be counted for the calculation of overtime
Shift handover
88.10Where hand over time is necessary for the safe and efficient function of work operations, overtime will be paid only when such functions cannot be incorporated within the timeframes of the shift involved.
Broken shifts
88.11Employees working set starting and finishing times in broken shifts whose starting and finishing times extend beyond a period of 10 hours, will have the whole of the time outside the period paid for all overtime rates.
Overtime meal allowance
88.12An employee will receive a payment of an overtime meal allowance of $16.30 (This rate will increase by 3% on 1 March 2019, 1 March 2020 and 1 March 2022) under any of the following criteria:
·The employee is called out and works in excess of 2 hours, covering the meal period, and was not advised the previous say of such working.
·The meal periods are as follows:
-Lunch 1200-1400
-Dinner 1700-1900
·An employee who is called out, is given less than 2 hour’s notice [sic], to work 2 hours or more immediately before a rostered shift.
·An employee is called out and is advised after 2200 hrs to sign on before 0600 hrs to work 2 hours or more immediately before a rostered shift.
·The employee works an overtime shift or more than 4 hours between 1900 hrs and 0700 hrs when less than 2 hour’s notice is given.
·The employee is advised after 2000 hrs to sign on before 0600 hrs to work on overtime shift of over 4 hours.
·An employee works more than 2 hours overtime past their rostered finishing time regardless of when the employee is notified of the requirement to work overtime.
Queensland Rail Travel Product Familiarisation
88.13 Queensland Rail Travel employees may mutually agree to a Product Familiarisation trip, which will be undertaken under the following principles:
88.13.1This trip would not include overtime payments;
88.13.2All travel costs/incidental expenses will be covered by the business;
88.13.3Employees will be paid per projected roster for the period of the trip;
88.13.4The familiarisation journey will be considered “completed” once the employee returns to their home base (city/town);
88.13.5At the day and time at which the familiarisation journey is considered “completed”, the employee’s rostered shift for that day will also be deemed completed, irrespective of hours remaining in the employee’s actual rostered shift for that day and the employee will be paid accordingly;
88.13.6The staff member on the trip will not be used to backfill another employee’s position or to substitute as a tour guide or leader.”
SUBMISSIONS AND CONSIDERATION
The Agreement at clause 26 provides a framework of provisions with regard to the regulation of part-time employment. The provision provides that part-time employees received the pro rata, pay conditions of a full-time employee for the equivalent work. They are also those that work less than full-time employees with a minimum shift of two hours and a minimum weekly number of hours of 10 hours, unless agreed between the company and the employee.
Further at the time of engagement there will be an agreement in writing to the number of ordinary hours to be worked per week, the normal weekly pattern of work and this may only be amended in writing by mutual agreement. Part time employees may also be converted to full-time on a permanent basis or for a specified period of time were agreed in writing.
The union in this matter contended that the two employees, the subject of the dispute, were permanent part time employees. There is no such designation under the Agreement. It is accepted that they were engaged on a written mutual agreement to work 20 hours per week. The union argued that if they worked additional hours outside these agreed hours, they are entitled to be paid at overtime rates. The employer relied on its practice, whereby the employees were consulted in the majority of cases, an email was sent to the employee prior to the additional required shift. The provisions do not prohibit the steps, and in fact, individually and collectively, provides support for that argument in terms of the rostering and where there was acceptance, the employee submitted this then did not invoke the provision for overtime rates for the additional hours worked. The union argued that the agreement of all of these employees to work additional hours on an ad hoc basis is not demonstrative of an agreement to amend the ordinary working hours being set out in the agreement in writing on engagement. The union argued that an agreement to work additional hours on an ad hoc basis did not waive their right to the application of clause, 26.10 in terms of an overtime payment to be made on the hours worked in addition to the ordinary hours.
The Respondent set out that it was not in dispute that the Applicants are offered and agreed in writing to vary their hours to work. Additional shifts from time to time where opportunities arise due to schedules, training requirements, and pick operational periods. The employer characterises these periods as opportunities for the part-time employees, by consent to earn additional income of which the Applicants have enjoyed for some years, the employer emphasised that the practice was in accordance with the part-time provisions of the Enterprise Agreement, which expressly provides that the parties can reach agreement in writing to vary the ordinary hours that were originally agreed to at the commencement of employment. The employer relied on ‘accrued jurisdiction’ to support the respondent’s interpretation of the part-time provisions that gave rise to the ability to work, part-time employees in this way. That is subject to those employees written agreement to be afforded the opportunity to work additional shifts paid at the ordinary time rate and such variations can be made on a one-off basis, as well as on a permanent basis. However, in circumstances where agreement was not reached, or emergent circumstances required the additional hours to be worked overtime payments have been made.
Both of the employees provided witness statements and were called to give evidence in the matter. They stepped through their engagement and in accordance with that set out above, they gave an insight into how the contracts worked. It is noted there was aspiration for part time employees to increase the ordinary hours of work as agreed on engagement.
Ms Breanne Love stated, she commenced employment with Queensland Rail in the Cairns travel centre. She was classified as a part-time employee to work 20 hours per week, which she understands her base hours in her position description. She understood that if her ordinary hours were increased, this would be reflected in a change to her position description, base hours. She stated that between 2018 and 2019, she was asked to work additional hours outside of her contracted hours and she was regularly required to work 7 1/2 hour shifts instead of a normal five-hour shift. She also stated that she was regularly required to work on her rostered days off. She stated she worked additional hours that were rostered or posted without communicating direct agreement. She considered that she had no choice but to agree to the terms outlined by payroll with these rostered additional hours or that she would miss out on those hours completely. Later, as she stated that she was provided notice in some form or another via phone call text or verbal discussion in the workplace. This typically occurred before publishing the roster and she was asked to work the additional hours outside of her contracted ordinary hours for that week. She stated she agreed to work these hours and that she communicated this verbally or in writing of some form. She said she was not paid overtime hours on these additional working hours. She set out in her statement where she worked the following additional hours outside of her contracted hours, she provided a list of these between June 2018 and March 2019. At that time, she was transferred temporarily to full-time hours to cover maternity leave for a colleague, and she returned to her substantive position in March 2020 with her hours of work being reset to 20 hours per week. It was around this time the Respondent began to email her to ask her to work additional hours. She stated that she was not informed that by agreeing to these additional hours request that she was forgoing overtime payments and that she and Miss Curry in 2022 approached the union about the nonpayment of overtime on these altered ordinary hours. She does foreshadow her contracted ordinary hours being increased 30 ordinary hours per week.
Ms Janine Currie provided similar evidence stating that when the fortnightly roster was published, and she was marked down to work additional hours above her contracted hours that she had not communicated acceptance of those additional hours to the employer. She had simply worked them as she needed the extra income. She stated she only spoke to the Respondent to refuse to work these additional hours when family commitments prevented her from working them. She stated that the practice evolved to the Respondent with the roster change, began actively requesting via a phone call text or conversation in the Workplace to see if she could work additional hours. This communication from the Respondent usually occurred before the publishing of the fortnightly roster. She stated that when she agreed to work these hours, she informed the employee in writing or verbally of this agreement. She said she was paid overtime on these additional working hours and no one from the employer had explained that acceptance of these additional hours meant that she was forgoing paid overtime. She stated that the lack of certainty as to when she would be paid overtime on these additional hours whilst working part-time concerned her.
In addition, a statement of evidence was provided by Andrew Smith, the payroll team leader who is occupied that position for 23 years.
He stated that on engagement, payroll established for each part-time employee the work pattern per employee in the payroll system based on their contract of employment or part-time work agreement. The evidence of Mr Smith was that there is a particular payroll process, followed to ensure that there is a prior agreement for part-time employees to change their ordinary contracted hours whereby there is a variation to the ordinary hours for a roster cycle and that it must be confirmed that there has been an agreement with the employee to change their ordinary hours. If there is no agreement and that employee is still asked to work additional hours to their agreed part-time hours, the business will be advised what those additional part-time hours are and that overtime rates are to be paid on those hours. If an employee agrees to vary their hours, either temporarily or permanently, the employees’ base hours are recorded separately. Finally, Mr Smith set out that employees progressed to their next rates within the band and after 12 months of full-time hours. He stated that with increased weekly ordinary hours for the part-time employees, they have progressed to the next pay point earlier than they would have if they were paid overtime after 20 hours or not.
Ms Vicki Birch also provided evidence having been employed by the Respondent for 22 years, that her role oversees the regional travel centre operations. Her evidence was that there was a seasonal shift to some of the work in the travel centres. For example, the Kuranda scenic railway services which is a tourism product, is subjected seasonal trends which have now become predictable and require the need to increase availability of employees during those periods. Accordingly, in 2017 the Respondent, determined to employ part-time employees to Service train departures and utilise the full-time employees to cover the full travel centre, operational hours and administrative shifts. The service departures had come to be known for the predictable peaks and troughs of the tourism business due to seasonal demand and accordingly the business partner employees to cover the service departures. The basis for doing so was that part-time employees can work a smaller number of guaranteed ordinary hours by agreement during quiet times and during busier times, subject to mutual agreement an increase in the ordinary hours. Predominantly the work of the two employees in this case was as Travel Consultants to service the train departures. Ms Birch submitted that the master roster reflects the shifts for all employees employed as part of the Cairns Travel Centre group. The operational roster is posted one week in advance further she set out in her evidence some examples which employees are advised on engagement. She said, whereby the rostering practice was to offer subject to mutual agreement in writing the ability via the offer for these employees to accept additional hours of work. Some of the examples in the Travel Centre that might require that were planned and unplanned leave customer, seasonal demand, business peaks, and troughs marketing campaigns changes to the rolling stock and operational impacts.
Evidence was that when forecasting the operational roster for the week, the senior team leader will liaise with part-time employees to offer the additional ordinary hours any additional period. This is often non-by employees up to 12 months in advance, particularly in relation to plan to leave.
Ms Birch indicated there is some history to prior consultation processes on the master roster. A reference was made to July 2019 whereby that particular process where the employees objected to the Respondent engaging further employees on the basis that that would curtail their ability to work additional ordinary hours to cover circumstances such as leave etc. In relation to the hours of the two employees, Miss Birch stated that for the periods of the additional agreed hours, she confirmed that for all hours worked; the roster was posted or provided in advance of the roster cycle commencing these rosters reflected the hours and pattern of upcoming roster cycle. Overtime was paid where the employees worked above the weekly and mutually agreed, ordinary rostered hours. She set out that employees did not accept additional laundry hours before the rosters were posted on a weekly basis. The practice of ensuring mutual agreements to additional ordinary hours, otherwise payments, were processed as overtime.
Ms Birch stated that prior to 2019, the consent to this mutual agreement was negotiated between the employee and the senior team leader responsible for producing these rosters, typically in person and not always via email. She stated that employees regularly declined, additional or hours or requested, alternate rosters due their personal circumstances. She stated that in rare circumstances, employees are called upon to work on their rostered time off and they were paid at applicable overtime rates. Miss Birch set out on an annual basis the series of scenarios representing the basis for offering additional hours in respect to roster cycles and the relevant operational requirements. These were relevant to the claims by the two employees.
Finally, Miss Birch stated that to update a position description requires consultation to occur with the impacted employees. She stated that updating a position description where there is a change of hours, isn’t a practice which occurs when a request is made to employees, to amend the ordinary hours. Instead, the mutual agreement for the variation of ordinary hours is in writing.
CONCLUSION
On the evidence, mutual agreement for the applicable period in dispute was reached in writing with these employees to work the additional rostered hours in the forthcoming roster cycle. However, the Union claims these hours should have been processed and paid as overtime.
In accordance with the full bench of Berri, the ordinary meaning of the words must be considered and take interpretation of such into account. The text of the Agreement view, considering the placement of the disputed provisions in the agreement, and the legislative context irrelevant to that consideration.
The plain and ordinary meaning of the language of 26.5, 26.6 and 26.7, gives rise to a clear interpretation that the employer, (after agreeing in writing with a part-time employee to vary their weekly ordinary hours, in terms of the date and number), can work that employee in accordance with that variation without having to pay overtime rates. This is distinct from a situation where an employee due to emergency circumstances is required to work additional ordinary hours allows for the agreement in writing. The employee is then to be paid overtime for those hours. On the interpretation of the agreement, taking into account, the collective nature of the relevant provisions, overtime is payable in circumstances where the Applicant is required to work in excess of the rostered weekly hours. Work of this nature or requests, normally representative of an unplanned and unrostered shifts, cover sick, leave or emergency circumstances where there has been no agreement to work these extra hours.
The employer relied on the full bench decision and the general Retail Industry Award 2021 and recognised that mutual written agreement can be achieved by the exchange of emails, and that the variations have no temporal limit. Accordingly, clause 26.6 allows for a change (on the basis of the practice as set out) to an employee’s ordinary hours.
Limited reference was made to case law in support of the claim for overtime. The variation to ordinary hours was not argued, as necessary to change the contracted hours, or the position description. The variation under mutual written agreement does not provide for the modification of the contract only the working of the additional hours.
Compliance with the Agreement requires mutual agreement, based on the offer in writing and acceptance, this can be undertaken by email. The Agreement is clear and unambiguous in terms of this interpretation. The agreed questions for arbitration are the only questions that have been answered in this matter.
The employer is at liberty to continue the practice where there is mutual agreement. If an employee does not want to reach an agreement, the part time employee should be aware of this, and it should be clear what rate they will be paid for the mutually agreed work. This is appropriate practice but does not change the interpretation of the words of the agreement. Where an agreement was reached for the variation of ordinary hours the overtime, provisions are not applicable. The provision of overtime payments as set out, in the Agreement are applicable where there is no agreement reached for the amendment to ordinary hours. In addition, ordinary hours change due to emergent circumstances, where there is no agreement as set out in the matter attract overtime penalty payments as well.
Accordingly, no claim for the back payment for overtime payments is supported: the answers to the questions for arbitration are answered yes, which does not then require the second or third question to be answered.
Accordingly, for the reasons set out the application, made on behalf of the union is dismissed. I order accordingly.
COMMISSIONER
[1] [2017] FWCFB 3005.
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