Australian Workers' Union v Retro Traffic Pty Ltd
[2019] FWCFB 1068
•8 MARCH 2019
| [2019] FWCFB 1068 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604—Appeal of decision
Australian Workers’ Union
v
Retro Traffic Pty Ltd
(C2019/372)
VICE PRESIDENT HATCHER | SYDNEY, 8 MARCH 2019 |
Appeal against decision [2018] FWCA 7383 of Deputy President Dean at Sydney on 21 December 2018 in matter number AG2018/3590.
Introduction and background
[1] This decision deals with an appeal made by the Australian Workers’ Union (AWU), for which permission is required, against a decision 1 of Deputy President Dean made on 22 December 2018 (Decision) to approve The Retro Traffic Enterprise Agreement 2018 (Agreement).
[2] The Agreement was approved by the Deputy President under the Fair Work Act 2009 (FW Act) in consequence of her satisfaction that the requirements of ss 186, 187, 188 and 190 of the FW Act as were relevant to the approval application had been met. 2 Part of that consideration was the acceptance of certain written undertakings given by the applicant employer in the approval application - the respondent in this matter, Retro Traffic Pty Ltd (Retro), under s 190 of the FW Act. The Decision also noted that the AWU, which had opposed the application on grounds that included the matters raised on appeal, was covered by the approved instrument under s 183 of the FW Act.
[3] One of the approval requirements, and the focus of this appeal, is that the Commission must be satisfied that the better off overall test (BOOT) has been met in accordance with s 186(2)(d) of the FW Act. 3 Section 193 defines the BOOT, as relevant to this appeal, as follows:
193 Passing the better off overall test
When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
. . . .
Award covered employee
(4) An award covered employee for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her employer.
Prospective award covered employee
(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:
(a) would be covered by the agreement; and
(b) would be covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would perform under the agreement; and
(iii) covers the employer.
Test time
(6) The test time is the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.
FWC may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.
[4] It is common ground that the relevant modern award for the purposes of the BOOT is the Building and Construction General On-site Award 2010 (Award).
[5] The AWU’s notice of appeal contends that the Decision disclosed appealable error because the Deputy President erred in finding that the Agreement met the BOOT for the following reasons:
• The Agreement does not distinguish between dayworkers and shiftworkers, as defined in the Award, for the purposes of overtime payments. The Agreement authorises the payment of shiftwork loading in lieu of overtime rates to employees who would not meet the Award shiftwork definition, that is, dayworkers.
• The classification of work for a Trainee Traffic Controller under the Agreement is equivalent to the classification of work of a Construction Worker Level 2 (CW2) under the Award. However, the rate of pay for a Trainee Traffic Controller under the Agreement is below the rate of pay for the CW2 classification under the Award.
[6] At the commencement of the hearing of the appeal, the AWU withdrew the second of the above bases for the appeal, and sought to add an additional ground of appeal associated with the application of the BOOT to casual employees who were undertaking shift work without 48 hours’ notice of the shift concerned. In the case of these casual employees, the AWU contended that under the Award such work would attract overtime payments, and not the shift loading applicable under the Agreement, and this was an additional factor confirming that these employees would not be better off overall by the approval of the Agreement.
[7] Given that the casual employees shift payment issue directly concerns the BOOT and arises from the AWU’s contentions about the operation of the Award and the Agreement relied upon more generally in this matter, and as no objection was raised by Retro, we have considered this further ground in determining this appeal.
[8] During the hearing, both parties sought to lead some limited fresh evidence directed at the operations of Retro, and to a limited degree, the traffic control industry more generally. Under s 607(2) of the FW Act the Commission may admit further evidence, and we decided that it was appropriate to do so in this case given the common position of the parties and the issues arising on the appeal. Accordingly we received into evidence witness statements made by Ciaran Deighan, the Operational Manager of Retro, and Anthony Callinan, the Assistant Secretary of the NSW Branch of the AWU. Both Mr Deighan and Mr Callinan gave oral evidence in the appeal hearing and were cross-examined.
[9] Retro opposed both the grant of permission to appeal and the appeal proper, and both aspects were heard by us together. There was no challenge to the AWU’s standing to bring the appeal.
[10] For the reasons below, we have decided to grant permission to appeal, uphold the appeal and remit the matter for further consideration and determination by a single Member of the Commission.
The Agreement
[11] In analysing the Agreement, we note that according to the Form F17 statutory declaration supporting the application for approval, all of the 173 employees to be covered by the Agreement at the time it was made were casual employees. This remains the case. 4 However, as the Agreement provides for all categories of employment (full-time, part-time and casual) the Commission must be satisfied in relation to the BOOT for all classes of employees.
[12] The relevant features of the Agreement are as follows:
• it applies to all employees of Retro appointed to classifications set out in the Agreement in the civil construction and maintenance industry in New South Wales (clause 2);
• the Agreement is to be read in conjunction with, and incorporates, the Award (and the National Employment Standards), but the Agreement’s terms and conditions prevail over the terms of the Award in relation to all matters contained within the Agreement and the Award is referenced only where the Agreement is silent (clause 5);
• the rates of pay in the Agreement include loadings and compensation for all other allowances and conditions, excluding the allowances and conditions specifically provided under the Agreement (clause 7.2);
• the rates of pay, even after taking into account the incorporated loadings and allowances set out in the Award, are higher than the remuneration payable during ordinary (day work) hours under the Award. The TC2 casual rate under the Agreement at test time was $22.52 per hour and the equivalent CW2 rate under the Award was $22.45 per hour; and
• there are a number of other provisions set out in the Agreement which are more beneficial to employees than the Award, including higher overtime rates (when they are applied), meal and travel allowances and some associated provisions, higher leading hand and first aid allowances, sickness and accident insurance for casual employees and the payment of a 30% night shift loading in some circumstances when a lower loading (15%) might otherwise apply to some of that work.
[13] In relation to the hours of work and shift provisions, the Agreement defines the ordinary hours of work in the following manner:
8.1 Ordinary hours of work
8.1.1 Day Work
(a) Full time employees' ordinary hours of work will be a maximum of 38 hours per week Monday to Friday and with up to 8 hours per day.
(b) Ordinary hours of work for Casuals will be 38 hours per week between Monday to Friday and up to 8 ordinary hours per day.
(c) Span of ordinary hours of day work Monday to Friday is up to 8 hours per day between the hours of 6.00am and 6.00pm.
(d) The ordinary hours of work per day between Mondays to Friday, will have 0.4 of an hour per 8 hour day accrued towards a Paid Time Off ("PTO") bank of hours.
(e) These accrued PTO hours will be paid out at ordinary hourly rate on termination or at any other mutually agreed time between the employee and the employer.
(f) Any accrued hours taken as days or PTO shall be paid at the employee's ordinary time rate and shall be only taken at a mutually agreed time by both the employee and employer.
(g) For the avoidance of doubt the taking of such accrued hours as days off or PTO can only occur if the employee has no scheduled or rostered hours of work available to them and by agreement with the employer.
8.1.2 Night Work
(a) Ordinary hours of work for night work can be worked between 6.00pm and 6.00 am Monday to Friday with a maximum of 8 (eight) ordinary hours per engagement.
(b) The ordinary hour rate of pay for night work is prescribed in Appendix 1.
(c) The main meal break up to 30 minute will paid as if worked.
(d) For the avoidance of doubt PTO hours may be banked on Night work rates of pay.
(e) Casual employees may agree to night work rosters that are consistent with requests of the employer's client.
8.1.3 Afternoon Shift
If it becomes a requirement for regular afternoon work than it will be paid in accordance with the relevant sector provisions of the Building and Construction General On Site Award 2010.
[14] Day, Night and Afternoon shift/work are defined as follows in clause 1.1 Definitions:
Day shift/work all hours worked between 6.00am and 6.00pm.
…
Night Shift/Work all hours worked between 6.00pm and 6.00am.
Afternoon/ work shifts starting at or after 10.am (sic) and before 6.00pm.
[15] The engagement for duty provisions in clause 8.2 provide some significant context for the operation of the other Agreement provisions as follows:
8.2 Engagement for Duty
a. The Parties acknowledge that, due to the nature of the Traffic Control Industry that Casual Employees will usually only be notified on the previous day of the next day's engagement or start time. For avoidance of doubt, this clause does not apply to any Part-time employee which will have prescribed hours and days to be worked provided in writing before commencing Part-time employment.
b. Casual Employees acknowledge they will be available with the relevant notice for whatever engagement or roster that becomes available and allocated to them in accordance with the individual employee's skill set being the only determining factor for the allocation of work. Casual employees agree and acknowledge that a night work roster may be of less than 5 consecutive engagement durations. Further if the break in the designated consecutive night work roster is the causation of the employee or not attributable to the employer, than no additional penalty as prescribed by clause 34.2(m) shall apply.
c. Casual employees start times may vary on short notice and shall only start their engagement then they have arrived at the authorized work site and started work unless requested by management otherwise, for example an Employee is requested to work at or start work in the depot or attend training or an induction;
d. Finish times are dependent on the client's work;
e. Subject to this Agreement, Traffic Controllers will be paid a minimum of 4 hours at applicable rates for each engagement provided that:
i. Depending on the operational requirements of the Employer, Employees may be required to work at one or more different locations at same client's sites during a day. Employees will be paid for continuous hours worked until such time that the Employer has clearly determined that an engagement has concluded and the Employee has been authorised to return home.
ii. A separate 4 hour minimum at the relevant rate of pay will only be paid if a Casual Employee has been authorised by the Employer to return home after the conclusion of an engagement and is then asked to return to work; further
iii. the minimum payment does not apply:
1. if the Employee leaves the site for any reason other than as directed or approved by the Employer;
2. for disciplinary reasons.
3 Where a shift is cancelled and a Casual Employee is provided with at least Two (2) hours' notice from the designated start time of the cancellation of a shift, the Employee will not be entitled to any remuneration for that shift.
f. Staff may be requested to perform callout / emergency work additional to their normal rostered shifts and shall be paid at the relevant penalty rate as prescribed by the Award.
g. All Employees will receive at least a 10-hour break between each shift of eight hours or more, otherwise overtime rates shall apply.
h. Employees will be paid the relevant rate of pay including any applicable penalty as prescribed in the Agreement for all compulsory training, and site inductions required by Employer regardless of when it is held (ie Saturday or Sunday) and no travel allowance will be payable.
i. Costs of training provided by Employer to Employees will be free of charge.
j. Periodic staff meetings are held for Employees to attend, subject to compliance with fatigue management policies. Where Employees attend the periodic staff meetings, they will be paid the relevant hourly rate pay including any applicable penalty for their attendance on the day of the meeting.
[16] The overtime provisions are contained in clause 8.5 of the Agreement in the following terms:
8.5 Overtime and penalty rates
(a) Employees shall receive overtime rates for work completed in excess of 8 ordinary hours in one Engagement.
(b) All employees when overtime is worked on Saturday it will be paid for at a rate of time and a half for the first two hours and double time thereafter provided that all overtime worked after 12 noon is paid at the rate of double time as provided in clause 7.2.
(c) All work performed on a Sunday will be paid at double time rate as provided for in clause 7.2.
(d) Overtime after 8 hours on day work shall be paid on Monday to Friday at the rate of time and a half the ordinary time rate for the first 2 hours each shift and double time thereafter as per clause 7.2.
(e) An Employee whilst on a night or afternoon shift work Engagement other than on a Saturday, Sunday or Public Holiday shall be paid for such Engagement at the Night Rate outlined in Clause 7.2. For all time worked outside the first 8 hours, Employees shall receive double time thereafter as per clause 7.2.
(f) Employees shall be paid for all time worked on Night/work, between midnight Friday and 6.00 am Saturday at the time and a half rate as provided for in clause 7.2.
(g) Employees shall be paid for all time, worked between midnight Saturday and midnight Sunday at double time rate, as provided for in clause 7.2.
[17] Subject to the impact of certain provisions, such as callout emergency work under clause 8.2(f) and the overtime and penalty rates in clause 8.5, the Agreement contemplates that work performed within the day work definition is payable at ordinary rates, and work performed within the night work definition is payable at the rate specified in Schedule 1 for such work, being a loading of 30% (in addition to the casual rate). Where a work “shift” includes work in both periods, the relevant payment will apply without the entire “shift” being treated as an afternoon or night shift.
The Decision
[18] In relation to the application of the BOOT, the Deputy President dealt separately in the Decision with the two issues raised by the AWU in opposition to approval of the Agreement at first instance. In relation to what was described as the overtime issue, the Deputy President said:
“Overtime for shift workers
[14] The AWU raised a concern that the Agreement did not distinguish between shift work and day work for the purposes of overtime. It argued that “the provisions of the Agreement at clause 8.5 do not state that an employee will be paid overtime for any time worked outside of ordinary hours”. The AWU further argued that the undertaking provided to the Commission by Retro Traffic in this regard did not address its concern because the undertaking only increased the shift loading to time and one half for employees who work less than five afternoon or night shifts consecutively. It submitted that the undertaking only resolved the BOOT issue with respect to a comparison with clause 32.4 of the Building and Construction General On-site Award 2010 (the Award), but did not address its concern with regard to employees who were not engaged within a system of shift work as defined in the Award.
[15] Retro Traffic submitted that a number of enterprise agreements with the same or similar provisions had been approved by the Commission with the support of the AWU, and provided details of same.
[16] Retro Traffic argued that the Agreement did not provide for employees to be shift workers as contemplated by s 196 of the FW Act, and in any event employees under the Agreement do not work continuous shift rosters as defined in the Award. As a result, it submitted, the AWU’s argument was incorrect.
[17] I am satisfied, based on the material before me, that the undertaking provided by Retro Traffic satisfactorily deals with the concern raised.”
[19] The relevant part of the undertaking referred to is in the following terms:
“4. In addition to the wording in clause 8.2 (b), if the employer does not provide the shiftworkers at least the agreed roster duration of successive afternoon or night shifts, then the effected employee shall be paid the rate of time and a half for all the ordinary time during that shift.”
[20] It is not necessary for us to deal with the classification issue given the AWU’s withdrawal of the ground of appeal relevant to that issue and our concurrence with the position adopted by the Deputy President on that matter.
Appeal submissions
[21] The AWU contended that the Deputy President erred in concluding the Agreement was capable of passing the BOOT and that this meant that permission to appeal should be granted and the appeal upheld. It submitted that in applying the BOOT, the Deputy President incorrectly interpreted the relevant clauses of the Agreement and the Award and consequently misdirected herself in law, or alternatively that the Deputy President failed to consider the effect of the shiftwork provisions of the Award and the Agreement, thereby failing to take into account a relevant consideration.
[22] The AWU contended that financial detriment would be suffered by “the majority of employees covered by the Agreement” due to losses under two different scenarios. Firstly, in some cases, workplaces covered by the Agreement would not fall within the scope of the shiftwork provisions of the Award. This in turn was founded on the proposition that the shiftwork provisions of the Award, as applicable to the civil construction industry (clause 33 and associated provisions), require that there be a system of work where employees were followed by other employees at the work site concerned. This meant that that the Agreement does not provide the necessary distinction between day workers and shift workers, thereby allowing Retro to pay the shiftwork loading instead of overtime rates to employees who would not be considered shiftworkers under the Award (the shiftwork objection).
[23] The second scenario applied when casual employees were working on sites where shiftwork provisions would apply, but were not entitled under the Agreement to overtime rates where they are given shifts with less than 48 hours’ notice, as they would be under the Award (the shift notice objection). Further under this scenario, where employees were not working shifts that formed at least 5 consecutive shifts, the additional payments that would otherwise be due under the Award were not payable under the Agreement (the shift pattern objection).
[24] In each case, the AWU contended that the additional benefits that were contained in the Agreement, in comparison to the Award, were not sufficient to ensure that the employees were better off overall. To that end, the AWU provided a comparison of the payments due under the Award and the Agreement for employees working various casual shifts based upon its shiftwork objection. That comparison demonstrated a difference (loss) under the Agreement of approximately 15% of the Award-based payments, based upon the assumptions made.
[25] Retro contended that the findings of the Deputy President were open and that, in light of the undertaking provided, the Commission was correct to “assume” under s 193(7) of the FW Act that employees would be better off overall if the Agreement applied to the employees concerned. However during the hearing of the appeal, Retro did accept that the circumstances flowing from the shift notice objection may require an additional undertaking to ensure this outcome.
[26] In relation to the operation of the Award for the purposes of the shiftwork objection, Retro submitted that the AWU was incorrect in its assertion that for a shiftwork system to exist as contemplated by the Award, there must be at least two shifts at the relevant worksite. That is, the focus was not upon the worksite but upon the employer’s operations. Retro, it was submitted, has a system across its business where employees were engaged on various “shifts” so as to meet the requirements of its clients, and this was consistent with the Award. In that light, it was appropriate that the work performed outside of the normal day shift should be considered to be shiftwork (and not overtime) for the purposes of the comparison with the Award.
[27] In relation to the shift pattern objection, Retro submitted that the undertaking, in combination with the other provisions of the Agreement, meant that the employees were better off overall.
Consideration
[28] As stated by the Full Bench in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery: 5
“[11] It may be seen from the above that an enterprise agreement will pass the better off overall test if the Commission is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
[12] The application of the better off overall test is not to be applied as a line by line analysis. Rather it is a global test requiring consideration of advantages and disadvantages to award covered employees and prospective award covered employees of an agreement’s application compared to the application of a relevant modern award. The application of the better off overall test therefore requires the identification of terms of an agreement which are more beneficial to the relevant employees when compared to the relevant modern award, the terms of an agreement which are less beneficial or detrimental when compared to the relevant modern award and then an overall assessment of whether each relevant employee would be better off under the agreement.”
[29] In this case, we consider the particular issues associated with the shiftwork arrangements are critical, as they fundamentally impact upon the global assessment required by the BOOT.
[30] In order to deal with the import of the issues arising in this matter, it is necessary for us to consider the entitlements and remuneration that would, but for the Agreement, be payable under the Award to the employees covered by the Agreement. This forms the benchmark for the application of the BOOT. It is not in dispute in this connection that the work covered by the Agreement is to be treated as being part of the civil construction sector under the Award. This is of significance because the Award contains discrete shiftwork specifically applicable to the civil construction sector.
[31] In general terms, clause 33 of the Award provides for ordinary hours of work between 7.00am and 6.00pm Monday to Friday. The provision however allows for the operation of the separate shiftwork provisions in clause 34. The relevant shiftwork clauses of the Award for present purposes include clause 34.2(a) of the Award, which sets out the following definitions:
“For the purpose of this clause:
shiftwork means any system of work in which operations are being continued by the employment of a group of employees upon work on which another group had been engaged previously
day shift means any shift starting on or after 6.00 am and before 10.00 am afternoon shift means any shift starting at or after 10.00 am and before 8.00 pm night shift means any shift starting at or after 8.00 pm and before 6.00 am
rostered shift means a shift of which the employee concerned has had at least 48 hours’ notice.”
[32] Clauses 34.2(j) to (n) prescribe the loadings payable to shiftworkers and these include that:
• a shiftworker is entitled to a 15% loading on their ordinary time hourly rate for work on an afternoon or night shift;
• if a shiftworker works on an afternoon or night shift for less than 5 consecutive shifts, the shiftworker is entitled to be paid a 50% loading on their ordinary time hourly rate for each shift; and
• a shiftworker who “during a period of engagement, works night shift only … or … works on a night shift for a longer period than four successive weeks … or … works on a night shift which does not rotate or alternate with another shift or with day work so as to give the employee at least one third of their working time off night shift in each cycle” must be paid a 30% loading on their ordinary time hourly rate for work on those night shifts.
[33] Clause 36.2 entitles employees to overtime as follows:
“All time worked beyond an employee’s ordinary time of work (inclusive of time worked for accrual purposes as prescribed in clauses 33—Ordinary hours of work and 34—Shiftwork), Monday to Friday, must be paid for at the rate of time and a half for the first two hours and at double time thereafter.”
[34] However, the shiftworker entitlement to overtime is modified by cl 34.2(i), which provides:
“All time worked by a shiftworker in excess of or outside the ordinary hours (inclusive of time worked for accrual purposes), or on a shift other than a rostered shift, must be paid for at the rate of double time. Provided that this will not apply when the overtime is worked by arrangements between the employees themselves or for the purpose of effecting the customary rotation of shifts.”
[35] Given the terms of the Agreement as outlined earlier, a number of issues arise which, given their significance and the balance of benefits otherwise provided by the Agreement, mean that they have the potential to significantly impact upon the global assessment required by the BOOT in respect of some employees.
Shiftwork objection
[36] For reasons that will become clear, it is not necessary for us to finally determine the shiftwork objection; however some observations might assist with the final disposition of the matter. The shiftwork objection fundamentally requires consideration of the proper application of the shiftwork provisions of the Award in the context of the operations conducted by Retro. Put simply, the AWU contends that as the Award relates to on-site work, the definition of shiftwork in clause 34.2(a) requires that the system of work involves operations at the relevant site whereby the work is being continued from one to another group of employees who have been previously engaged at that site. In effect, the AWU contends that in order for the Award shiftwork provisions to be applicable, it would be necessary for there to be either a day shift followed by an afternoon or night shift, an afternoon shift followed by a night shift, or a day, afternoon and night shift. Where only a single “shift” was utilised at a worksite, the shift provisions were not satisfied and any work outside of the ordinary span of hours for day work would attract the overtime rate.
[37] Retro contends that the AWU’s contentions do not match industrial reality. It submits that traffic management operations are continuous and the AWU’s assumed restriction on the application of shiftwork to a specific worksite, or the need for two shifts at each site, would not work in practice. Clause 34.2(a) of the Award refers to “any system of work” and was not intended to impose a specific worksite limitation or focus. Further, Retro submitted that the clause 34.2 reference to the “group that had previously been engaged” is not limited to either dayworkers or shiftworkers and that it would be a “peculiar result if the civil construction hours provisions of the Award (and the Agreement) were to be construed in a way which did not acknowledge that the work of a dayworker may be continued by shiftwork given the demand for continuous operations in the sector.”
[38] The Decision of the Deputy President did not expressly engage with the controversy which underpins the shiftwork objection.
[39] This is a significant issue with potentially wide ramifications for the parties. Despite the additional evidence before the Commission, there is insufficient evidence to allow us to make any findings as to whether Retro conducts a roster system as would appear to be contemplated by clause 34.2 of the Award. Further, whether the definition of shiftwork in the Award requires the roster system to involve consecutive “shifts” at the same work location rather than in the employer’s enterprise more generally, particularly in the context of the modern traffic control industry, necessitates a detailed consideration of the history of the Award and its apparent objective intent beyond the scope of materials presently before us.
[40] We do note that clause 34.2 is fundamentally drawn from the former Australian Workers' Union Construction and Maintenance Award 2002, 6 and that the definition of shiftwork in clause 34.2(a) refers to any system of work in which the operations are being continued by a group of employees. Whether this provision requires that each of the consecutive groups be working shifts (one of the defined shifts - rather than day work), and whether the consideration of the operations must be focused on each site, requires further and more detailed consideration.
[41] Because, for the reasons which follow, we are satisfied that the AWU’s submissions concerning the shift notice objection and the shift pattern objection must be accepted with the result that the Agreement was incapable of approval under the FW Act absent further undertakings, it is not necessary for us to deal to finality with the shiftwork objection. That is a matter which can more appropriately be dealt with in a re-hearing of Retro’s application for approval of the Agreement.
Shift notice objection
[42] In relation to the shift notice objection, the evidence before the Commission is that the majority, but not all, of employees are given at least 48 hours’ notice of their requirement to work, although the details of the work location may be provided closer to the event. There will therefore be at least some circumstances where employees are not given 48 hours’ notice of the requirement to work, and this is expressly contemplated by the terms of clause 8.2 as set out earlier in this decision. Under the Award, the consequence of not giving 48 hours’ notice is that the shift will not be a rostered shift (clause 34.2(a)) and would attract overtime payments (clause 34.2(i)). Given the difference between the Award and Agreement provisions, in this circumstance employees are likely to be worse off under the Agreement even after the other benefits of the Agreement are taken into account. This was conceded by Retro during the hearing of the appeal.
Shift pattern objection
[43] In relation to the shift pattern objection, we apprehend that the relevant undertaking provided by Retro was accepted by the Deputy President to meet a concern about this issue. The undertaking was set out earlier in this decision and it provides that in addition to the wording in clause 8.2(b), if the employer does not provide shiftworkers with at least the “agreed roster duration” of successive afternoon or night shifts, then the affected employees will be paid the rate of time and a half for all the ordinary time during that shift. It is apparent from the Decision that the Deputy President proceeded on the basis that this would, in effect, mean that if the roster duration did not accord with the Award provision, the time and half penalty would be applied. We note that this is understandable given the position of the AWU recorded at paragraph [14] of the Decision. However, the meaning of the expression “agreed roster duration” is not clear on its face as clause 8.2(b) records an agreement and acknowledgement by casual employees that a night work roster may be of less than five consecutive engagement durations. We accept that this clause also recognises that if the break in the designated consecutive night work roster is caused by the employee and not attributable to the employer, then no additional penalty as prescribed by clause 34.2(m) of the Award is to apply. The uncertain interaction between the Agreement provisions and the Award provisions that may be preserved by the operation of clause 5 of the Agreement requires in our view further clarification in any undertaking that would address the shift pattern objection. In addition, given the coverage of other classes of employees, the scope of the undertaking beyond casual employees should also be considered.
[44] In all of the circumstances, including the relevant undertaking, we do not consider that the Agreement meets the BOOT given the overall package of benefits in the Agreement for some employees when considered in the context of the package of Award provisions applied to this enterprise.
Conclusions
[45] Section 604(2) of the FW Act requires the Full Bench to grant permission to appeal if it is satisfied it is in the public interest to do so.Given our findings, we consider that the grant of permission to appeal would be in the public interest. The approval of the Agreement in circumstances where it did not pass the BOOT amounted to a jurisdictional error which has the potential to disadvantage employees to whom the Agreement applies. The appeal should be upheld on the basis of the errors identified.
[46] However, it does not follow that the application for approval of the Agreement should be dismissed, since it appears to us that it would be open for Retro to propose undertakings to rectify the BOOT deficiencies which have been identified. Such undertakings might, subject to the overriding limitations in s 190(3), involve a number of things to address the shift notice and shift pattern objections. Depending upon the final view taken by the Commission about the shiftwork objectionin a re-hearing, it may also be necessary for an undertaking to be provided which addresses this issue.
[47] We consider that Retro should be given an opportunity to advance appropriate undertakings in a re-determination of its application for approval of the Agreement and for all parties to make further submissions and provide additional evidence on the intended operation of the shiftwork provisions of the Award for the purpose of the BOOT in the context of Retro’s operations.
Orders
[48] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2018] FWCA 7383) is quashed.
(4) The application for approval of the Agreement (AG2018/3590) is remitted to Commissioner Hampton for re-determination in accordance with our reasons for decision.
VICE PRESIDENT
Appearances:
A Sage and T Craven for the Appellant.
D Lyons and C Deighan for the Respondent.
Hearing Details:
2019
Sydney
20 February.
Printed by authority of the Commonwealth Government Printer
<PR705078>
1 [2018] FWCA 7383
2 Ibid at [22]
3 We note that s 189 of the FW Act identifies the circumstances in which the Commission may approve an enterprise agreement that does not pass the BOOT; however, these are not relevant in this matter.
4 Oral evidence of Mr Deighan in the appeal.
5 [2017] FWCFB 1664
6 [2009] AIRCFB 50 at [44]. See also Master Builders Australia Limited [2013] FWC 4576 at [262].
5
3
0