Australian Workers' Union v Manildra Harwood Sugars T/A Sunshine Sugar
[2021] FWCFB 1744
•29 MARCH 2021
| [2021] FWCFB 1744 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Australian Workers’ Union
v
Manildra Harwood Sugars T/A Sunshine Sugar
(C2020/8941)
VICE PRESIDENT CATANZARITI | SYDNEY, 29 MARCH 2021 |
Appeal against decision [2020] FWC 5064 of Deputy President Bull at Sydney on 16 October 2020 in matter number C2019/4912 - appeal upheld.
[1] The Australian Workers’ Union (AWU) (the Appellant) has lodged an appeal against a decision 1 (the Decision) of Deputy President Bull (the Deputy President) issued on 16 October 2020. The Decision dealt with an application by the AWU under s 739 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to deal with a dispute between it and Manildra Harwood Sugars T/A Sunshine Sugar(the Respondent) in accordance with the dispute settlement procedure in clause 33 of the Sunshine Sugar Enterprise Agreement 2017 (the Agreement).
[2] We note that this appeal was lodged outside the time prescribed by the Fair Work Commission Rules 2013 (the Rules). The Deputy President issued the Decision on 16 October 2020, and the appeal was filed on 11 December 2020, outside the 21 day time period prescribed by r 56(2) of the Rules. The Appellant submits that the appeal was brought outside of the prescribed time period because it, with the consent of the Respondent, had written to the Deputy President to clarify an aspect of the Decision. The Respondent has indicated that they consent to a grant of an extension of time to bring the appeal. Accordingly, we will adopt the parties’ consent position and grant the extension of time.
[3] On 11 February 2020, the Appellant’s representative wrote to the Chambers of Vice President Catanzariti to indicate that both parties consented to the appeal being determined on the papers without a formal hearing and requested that they be allowed to file short, reply submissions in lieu of a hearing. We granted that request. Accordingly, pursuant to s 607(1) of the Act, the appeal was conducted on the basis of written submissions only.
[4] The Full Bench has received and considered all of the parties’ submissions.
The reply submissions
[5] Whilst we acknowledge receipt of the Appellant’s reply submissions and the Respondent’s further reply submissions, we agree with the Respondent’s assertion that paragraphs 8 and 9 of the Appellant’s reply submissions should be disregarded as they were not submissions advanced before the Deputy President nor in the Appellant’s initial submissions to the Full Bench.
[6] Furthermore, regarding the jurisdictional questions raised in the parties’ reply submissions, we are satisfied that cl 33 of the Agreement gives rise to an independent right of appeal that displaces the requirement for permission to be granted under s 604 of the Act. 2
Decision under appeal
[7] The dispute between the parties concerns the meaning and application of certain sub clauses of clause 17 Shift Work of the Agreement. The sub clauses in question are:
• 17.1 – Notices of Changes and
• 17.5 – Relief Cover for Absence at 17.5(a) – Harwood, Murwillumbah Retail and Condong Process
[8] The subclauses read as follows:
“17.1 NOTICES OF CHANGES
It may be necessary to change an employee from one roster to another roster for various reasons. A Shift Worker required to change rosters will be given 7 days’ notice of such a change. If 7 days’ notice is not given, then the first shift worked in the new roster will be at normal overtime rates.
It may be necessary to change an employee from one Shift to another Shift during the roster cycle for various reasons. A Shift Worker required to change Shifts will be given 7 days’ notice of such a change. If 7 days’ notice is not given, then the first Shift worked in the new Roster position will be at normal overtime rates.
Subject to at least 48 hours of notice, shift work employees may be transferred from ordinary shift work to ordinary day work when operations cease for any reason, such as wet weather or mechanical breakdown, and from ordinary day work to ordinary shift work when operations recommence. Where 48 hours’ notice is not provided employees will be paid at overtime rates for the first shift worked after such change.
Where an employee is transferred from shift work to day work in accordance with this provision they shall, for the remainder of the week in which such transfer occurs, continue to be paid at the classification rate of wages payable to them whilst on shift work, excluding shift allowances.
Where the commencement or cessation of the continuous roster, such as for the crushing season, results in an employee working less than the required hours for the week, work will be made available to make up the required ordinary time.
17.5 RELIEF COVER FOR ABSENCE
a) Harwood, Murwillumbah Retail and Condong Process.
When unable to attend work an employee will inform their supervisor as soon as reasonable.
Reliable relief cover must be provided from within the shift group in the first instance.
In circumstances where cover cannot be provided by people who are on “days off” then a shift swap may be required. The shift worker required to make the shift swap will be paid at 200% per hour and will also be paid an additional payment of 8 hours for rest break at ordinary time, inclusive of the shift penalty for normal rostered shift missed.
In the event that no employee from the shift work-group is available to provide relief cover then an employee from outside the shift group may be engaged, provided that the employee is appropriately trained and has the skills to perform the role.
For long term absences relief cover will be arranged by the employer in consultation with the relevant shift group.”
[9] This dispute arose when two of the Respondent’s employees notified the Respondent that they would be taking unplanned absences from work for various shifts. In making arrangements to cover those absences, the Respondent relied on clause 17.1 above. The Appellant submitted that this was done contrary to the agreement and that the proper procedure is to first seek relief cover from the relevant shift group. If this cannot be achieved, a shift swap would be implemented and, if this is not possible, an employee from another shift group can be engaged to cover the absence. 3
[10] The parties agreed on the following question to be arbitrated:
“Where an employee is absent from work within a location noted in subclause 17.5(a) of the Agreement and is replaced:
In what circumstances does clause 17.5(a) of the Agreement apply and in what circumstances does clause 17.1 of the Agreement or any other clause, apply?
If clause 17.5(a) of the Agreement applies, how is it to operate so that any relief cover is correctly selected?”
[11] The Appellant contended that when a shift worker has taken an unplanned absence from work that requires relief cover, other shift workers within the shift group receive first priority at covering the absence by either agreeing to cover the shift or agreeing to do a shift swap if necessary. Where a shift swap is involved the employees are entitled to a higher rate of pay for the hours worked in accordance with subclause 17.5(a). 4
[12] In summary, the Appellant submitted that sub clause 17.1 is a general clause that applies to the adjustment period where employees move from day work to shift work and vice versa or when new rosters are introduced. Furthermore, sub clause 17.5(a) is a specific clause that takes precedence over sub clause 17.1 when relief is required for an employee absence at the location specified in sub clause 17.5(a). 5
[13] The Respondent contended that clause 17.5(a) does not oblige the Respondent to engage in a process by which it must seek coverage when an employee is absent. 6 It was submitted that sub clause 17.5(a) does not impose an obligation on the Respondent to obtain and seek out relief cover by offering relief work to employees within a specific group.7 As such, it was submitted that sub clause 17.5(a) applies only when the Respondent chooses to cover an absence in the form specified by the sub clause.
[14] The Respondent also contended that where an absence must be covered, it may do so via the following methods:
“• vertical cover or
• request an employee to work an overtime shift or
• a shift or roster change may be utilised or
• a shift swap may be utilised” 8
[15] In essence, the Respondent contended that the Agreement allows the Respondent a choice in how to cover absences; either by utilising a shift swap in which case sub clause 17.5(a) applies or use one of the other alternative methods outlined above, in which case sub clause 17.1 applies.
[16] The Deputy President considered the approach to construing agreements, 9 the evidence of the parties10 and the industrial background and context of the Agreement11 to make the following relevant findings:
“[122] While it is possible to view sub clause 17.5(a) as a mandated process to be followed in providing relief absence the better view when read in the context of the Agreement as a whole and the industrial context surrounding the introduction of 12 hour shifts is that sub clause 17.5(a) does not set out a singular process to be followed should absence relief be required.
[123] Subclause 17.5(a) is an option that can be utilised for leave relief as can the process under sub clause 17.1 which states that it may be necessary to change an employee from one roster to another or from one shift to another for various reasons.
[124] There is no warrant to take a narrow view of the sub clause 17.5(a) as preventing the employer utilising its rights under sub clause 17.1 should it be deemed more appropriate or cost effective consistent with the stated requirements of 12 hour shift arrangements set out in sub clause 17.4 by the employer not to utilise sub clause 17.5(a). The employer may utilise a shift swap as per sub clause 17.5(a) should they be willing to incur the penalty rates which are then set out. If not the employer may rely upon [clause] 17.1 to provide relief coverage.”
[17] Accordingly, the Deputy President answered the arbitral question as follows: 12
“Where an employee is absent from work within a location specified in sub clause 17.5(a) of the Agreement and is replaced:
i. Sub clause 17.5(a) of the Agreement applies where the employer determines to cover the absence in the manner prescribed in sub clause 17.5(a).
ii. For the purposes of sub clause 17.5(a) reference to the shift group is not confined to an employee’s workstation and extends to those employees engaged on a 12 hour continuous shift roster.
iii. Sub clause 17.1 of the Agreement applies where the employer determines to cover an absence by implementing a roster or shift change.
[18] For the reasons that follow, we find this answer is incorrect.
Consideration
Grounds 1 and 2
[19] The Appellant seeks to challenge only paragraphs (i) and (iii) of the Deputy President’s answer. Accordingly, appeal ground 1 contends that the Deputy President erred in concluding that subclause 17.5(a) of the Agreement applies only where the Respondent elects to cover an absence in accordance with the sub clause. Appeal ground 2 contends that the Deputy President erred in concluding that sub clause 17.1 of the Agreement can be utilised instead of sub clause 17.5(a) to cover temporary absences.
[20] The conclusions challenged on appeal by the Appellant flow from the overarching task of interpreting the Agreement. Therefore, we will deal with both grounds of appeal together.
Principles of interpretation
[21] The correct principles of interpretation to be applied in interpreting enterprise agreements were not in dispute between the parties. The most succinct expression of the correct approach is that articulated by the Federal Court Full Court in WorkPac Pty Ltd v Skene 13 as follows (citations omitted):
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose…”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”
[22] The Full Court observations are consistent with the approach taken by the Full Bench of this Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 14 (Berri). The principles found in Berri are well established15 and we will not restate them here.
The operation of the sub clauses
[23] The construction adopted by the Deputy President affords a discretion to the Respondent to choose whether it wishes to follow the procedure under sub clause 17.1 or 17.5(a) to provide relief cover for absences. The practical effect of this conclusion is that sub clause 17.5(a) is rendered otiose – there is no reason for the Respondent to elect to follow the procedure set out in sub clause 17.5(a) when sub clause 17.1, being the more flexible and cost-effective procedure, is available to it. Having regard to the principles of construction, interpreting the Agreement in this manner is not consistent with the principle that the framers of the Agreement were likely of a “practical bent of mind”. Practically minded drafters would not include a clause that has no real use or benefit.
[24] Turning to the words of clause 17.5(a), we find that a natural reading of the sentence “Reliable relief cover must be provided from within the shift group at first instance” imposes an obligation upon both the employees and the Respondent to provide relief cover from within the shift group. Therefore, where relief is needed to cover an absence, the Respondent must follow the procedures set out in sub clause 17.5(a).
[25] We consider that the sub clauses operate in the following way: sub clause 17.5(a) is a specific provision that provides the procedure which must be followed for dealing with relief absences, while sub clause 17.1 is a general provision that is utilised for operational changes to rosters and shifts.
[26] For the above reasons, we uphold grounds 1 and 2 of the appeal.
Disposition
[27] The Appellant has identified an appealable error. An error in the construction of an enterprise agreement is an error of law that warrants appellate intervention in order to examine the identified error and vary the Decision under s 607(3)(a) if the Act.
Conclusion
[28] We have read the Decision fairly and as a whole and considered all of the materials filed by the parties. The error of law warrants the varying of the Deputy President’s Decision.
[29] We order as follows:
• The time in which the to file the appeal be extended to 11 December 2020.
• The Appeal is upheld.
• Paragraphs (i) and (iii) of the Deputy President’s answer to the arbitral question are quashed.
• The arbitral question is answered as follows:
Where an employee is absent from work within a location specified in sub-clause 17.5(a) of the Agreement and is replaced:
(i) Sub clause 17.5(a) applies to the selection of relief cover for the absence. When a shift worker is absent, other workers within the shift group receive first priority at covering the absence by either agreeing to cover the shift or agreeing to a shift swap if necessary. Where a shift swap is involved the employees are entitled to the rate of pay prescribed in the sub clause. Where no employee within the shift group is available, then an employee from outside the shift group may be engaged in accordance with the sub clause.
(ii) For the purposes of sub clause 17.5(a) reference to the shift group is not confined to an employee’s workstation and extends to those employees engaged on a 12 hour continuous shift roster.
(iii) Sub clause 17.1 applies when operational changes to shifts and rosters are required.
VICE PRESIDENT
Final written submissions:
8 March 2021
Printed by authority of the Commonwealth Government Printer
<PR728243>
1 Australian Workers’ Union v Manildra Harwood Sugars T/A Sunshine Sugar [2020] FWC 5064.
2 See AMWU v Silcar Pty Ltd [2011] FWAFB 2555; (2011) 208 IR 33 at [15] – [28]; SDA v Woolworths Ltd [2013] FWCFB 2814 at [22].
3 Decision at [11].
4 Ibid [17].
5 Ibid [113].
6 Ibid [47].
7 Ibid [49].
8 Ibid [42].
9 Ibid [95] – [100].
10 Ibid [13] – [41], [58] – [94].
11 Ibid [101] – [105].
12 Ibid [127].
13 [2018] FCAFC 131, 264 FCR 536.
14 [2017] FWCFB 3005.
15 See Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241; (2005) 214 ALR 56; (2005) 79 ALJR 703.
0
7
0