"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and Australian Workers' Union, The v CBI Constructors Pty Ltd T/A CB&I

[2015] FWC 7460

[2015] FWC 7460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and Australian Workers' Union, The
v
CBI Constructors Pty Ltd T/A CB&I
(C2015/3367, C2015/5622)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 4 NOVEMBER 2015

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]; introduction of afternoon shift; whether introduction is a change to ‘Usual Working Hours’; whether day workers who interface with afternoon shift work become day shift workers under the agreement.

Introduction and background

[1] CBI Constructors Pty Ltd (CBI) is engaged by Esso Australia Resources Pty Ltd as the Engineering, Procurement and Construction Contractor to build a gas conditioning plant adjacent to the existing Longford Oil and Gas Processing Facilities (Project). The new gas conditioning plant will be used to process gas from the Kipper Tuna Turrum Project, Australia’s largest domestic gas development located on the eastern seaboard. Construction on the Project began in December 2013, and is programmed for completion on 30 April 2016.

[2] The employment of CBI’s employees performing work on the Project is relevantly covered by the Longford Gas Conditioning Plant Project Construction Agreement 2013 Between CBI Constructors Pty Ltd and the AMWU, AWU, CEPU and CFMEU (Agreement). The Agreement is a greenfields agreement. It was approved by the Fair Work Commission (Commission) on 1 November 2013 and commenced to operate on 8 November 2013. The nominal expiry date is 31 October 2017. Apart from its application to CBI and relevant CBI employees, the Agreement also covers the Automotive, Food, Metals, Engineering Printing and Kindred Industries Union (AMWU), the Australian Workers’ Union (AWU), the Construction, Forestry, Mining and Energy Union (CFMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively ‘the Unions’).

[3] Each of the AMWU and the AWU (collectively the ‘Applicant Unions’) has applied pursuant to s.739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure of the Agreement. There is no dispute as to the jurisdiction of the Commission to resolve the dispute by arbitration. The dispute concerns the introduction by CBI of an afternoon shift at the Project to be staffed by CBI employees covered by the Agreement, on a voluntary basis.

[4] The following matters appear not to be in dispute:

• Since the commencement of work on the Project in December 2013, all CBI employees to whom the Agreement applies worked as day workers, working ‘Usual Working Hours’ pursuant to clause 18.2 of the Agreement;



• Prior to work on the Project commencing, CBI and the Unions agreed, as contemplated by clause 18.5 of the Agreement, that the Usual Working Hours would be worked Monday to Friday, 7:00am to 4:30pm;



• Subsequently commencement times were staggered in order to ease congestion in the parking area, so that some employees commenced work as early as 6:30am;



• In around mid-2015, CBI introduced an afternoon shift;



• Approximately 25 employees currently work the afternoon shift, on a voluntary basis;



• Since the introduction of the afternoon shift approximately 300 employees volunteered to work on the shift;



• CBI pays employees who work on the afternoon shift at a penalty rate calculated at 200% of the ordinary rate for all time worked, leave and breaks;



• Though there is some doubt about the entitlement, CBI has undertaken that employees who work afternoon shift will receive redundancy entitlements, on the same terms as all other employees: that is, payable at the hourly rate set out in clause 25.4 of the Agreement, capped at 90 hours per fortnight.



• Shift work and the commensurate payment for work on shifts was the subject of discussion during bargaining for the Agreement. CBI accepted the Unions’ claim for a 200% penalty ‘but as a result, CB&I will not run shift work’. 1

Matters in dispute and question requiring resolution

[5] Two questions require resolution arising from the dispute. First, the Applicant Unions submit that CBI is not permitted to introduce the afternoon shift in respect of CBI employees covered by the Agreement who are eligible to be members of the AMWU or the AWU because their respective delegates did not agree as required by clause 18.5. That clause relevantly provides that apart from staggered or varied starting times between 6:00am and 7:00am, ‘[A]ll other changes to Usual Working Hours can only occur by agreement between the Company and the Delegate, without penalty’. The resolution of this part of the dispute turns upon the proper construction of the Agreement and raises the following question:

● In introducing an afternoon shift, is CBI required to reach agreement with the relevant Delegate to change the Usual Working Hours in clause 18.5? (First question)

[6] Secondly, the AMWU (but not the AWU) submits in the alternative that employees who work the day work and who interface with afternoon shift employees, are properly day shift employees under clause 18.13 of the Agreement. The AMWU relies on the definition of Shift Work in clause 18.13.1 of the Agreement. The resolution of this part of the dispute also turns upon the proper construction of the Agreement and raises the following question:

● Does the introduction of an afternoon shift change mean that employees who have been day workers and who interface with afternoon shift employees, work “Day shift” within the meaning of clause 18.13 of the Agreement? (Second question)

[7] The AWU also sought to agitate the redundancy entitlements of employees who work on the afternoon shift. I deal with this issue briefly at the end of this decision.

Principles of construction of an enterprise agreement

[8] The principles applicable to the construction of an enterprise agreement have recently been canvassed at length in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited. 2 It is not necessary that they be repeated here. The applicable principles are not in dispute and I apply those principles to the construction of the relevant provisions of the Agreement as required to resolve this dispute.

[9] The parties to these proceedings tendered material and led evidence directed to the background and surrounding circumstances, context and purpose of the provisions being construed and the Agreement more generally. To the extent that the Applicant Unions relied on evidence about the course of bargaining and prior negotiations for the Agreement, that evidence discloses no more than the subjective intentions, aspirations or views of one party (or perhaps the Union parties) to the bargaining process. It is of no assistance in establishing any objective background fact known to all parties relevant to the subject matter of the Agreement that is now in issue.

[10] To the extent that the Applicant Unions rely on email correspondence attached to the witness statement of Mr Stephen Dodd, 3 that email discloses no more than that in October 2013, CBI acceded to a demand for a particular level of premium for shift work to be contained in the Agreement, but in the result determined that it will not operate shift work because of the cost. The email is not evidence disclosing any matter in common contemplation or constituting a common assumption about the introduction of shift work pursuant to the Agreement or changes to ‘Usual Working Hours’. Shift work is a feature of the Agreement. The email says nothing about the limitations, if any, under the Agreement, for its introduction.

[11] Nor have I found the reliance placed on the terms and content of other agreements which have no application to the Project of any particular assistance in resolving the issues in dispute. Ultimately, the Agreement contains provisions for shift work, and for usual working hours. The disputed construction of these provisions is to be resolved by having regard to the text of the particular clauses of the Agreement at issue, the other provisions set out in those clauses, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it, and, the legislative background against which the Agreement was made and in which it was to operate.

Relevant provisions and their proper construction

First question

[12] By clause 5, the Agreement consists of the agreement document, the NES and incorporates the terms of the relevant Award. For present purposes, the relevant award is the Building and Construction General On-Site Award 2010 (Award). As between the agreement document and terms of the incorporated award, the express terms of the agreement document are said to prevail over the incorporated terms to the extent of any inconsistency. Some identified provisions of the Award not presently relevant are not incorporated.

[13] Clause 18 of the Agreement regulates hours of work. It relevantly provides:

‘18. HOURS OF WORK

18.1 Ordinary Hours

18.1.1 The Ordinary Hours of work shall be 36 hours per week.

18.1.2 The Ordinary Hours of work may be worked on any day or all of the days of the week, Monday to Friday.

18.1.3 The Ordinary Hours shall be worked continuously, except for meal breaks, at the discretion of the Employer between 6.00am and 6.00pm.

18.1.4 The Usual Working Hours shall not exceed 10 hours on any day.

18.2 Usual Working Hours

18.2.1 The parties agree that the Usual Working Hours on the Construction Site shall consist of 90 hours per fortnight: See Usual Working Hours pattern below.

MON	TUE	WED	THU	FRI	SAT	SUN
Week A	10	10	10	10	10	X	X
Week B	ROO	10	10	10	10	X	X

18.2.2 To avoid any doubt, the Usual Working Hours as described above shall consist of 7.2 Ordinary Hours at the applicable Ordinary Rate, the accrual of 0.8 hours at the applicable Ordinary Rate and two (2) hours of Overtime.

18.2.3 Every second Monday shall be a Rostered Day Off (ROO), unless altered by mutual agreement between the Employer and a majority of Employees on the Construction Site.

18.2.4 Where the alteration of an RDO is sought for only a discrete work group within the Construction Site the Company will consult with the Delegate prior to the alteration.

18.3 Project calendar

18.3.1 The Parties have agreed to a Project calendar which schedules the lockdown weekends, RDOs and Christmas shutdown for the Project as set out in clause 31.

18.3.2 It is not intended that Employees will work on the Project on a lockdown weekend or Christmas shutdown as set out in the Project calendar, unless otherwise agreed. In the absence of agreement, the matter shall be resolved through the disputes resolution procedure.

18.4 Accrual of ROO

18.4.1 Usual Working Hours will be arranged on a system which provides for an Employee to accrue one RDO for every two (2) weeks worked. This will be done by the Employee working eight Ordinary Hours (8) hours each day, being paid at 7.2 Ordinary Hours pay at the applicable Ordinary Rate and accruing 0.8 of an hour at the applicable Ordinary Rate towards an RDO.

18.4.2 The RDO shall be taken in accordance with the Project calendar.

18.4.3 If an Employee is required to work an RDO, the time worked will be paid at Overtime rates and the Employee will retain an accrued RDO.

18.4.4 At the time of termination, all untaken RDO accrual hours shall be paid to the Employee at their applicable Ordinary Rate. Where an Employee has a negative RDO accrual balance the Company will remove the equivalent amount from any termination payment.

18.5 Changes to Usual Working Hours

18.5.1 Hours may be staggered or varied without penalty for a starting time between 6:00am and 7:00am by the Company to take into account delivery and Project schedules; traffic or transport management; inclement, climatic or seasonal weather; and available daylight hours provided that the Company provides at least 48 hours' notice of the proposed change. All other changes to Usual Working Hours can only occur by agreement between the Company and the Delegate, without penalty.
. . .

18.13 Shift Work

18.13.1 Definitions:

18.13.1.1 "Shift work" means any system of work in which operations are being continued by a group of Employees upon work on which another group had been engaged previously and where Employees work either a Day shift, Afternoon shift or Night shift.

18.13.1.2 "Day shift" means any shift starting on or after 6.00am and before 10.00am.

18.13.1.3 "Afternoon shift" means any shift starting at or after 10.00am and before 8.00pm.

18.13.1.4 "Night shift" means any shift starting at or after 8.00pm and finishing at or after 8.00am.

18.13.2 Employees (other than those under the age of 18 years) agree to work shift work when required by the Company.

18.13.2.1 The Company must give an Employee 48 hours' notice of its intention to introduce shift work. The notice will include the intended start and finish times of each shift. Less than 48 hours' notice may be given if there are safety or emergency requirements.

18.13.2.2 The Company may vary shift rosters. Subject to providingEmployees with 48 hours' notice of its intention, the Companymay transfer shift work to or from non-shift work to shift work,and from one shift cycle to another.

18.13.3 Other than for work on a public holiday, the rate of pay for shift work (afternoon or night) shall be as follows:

18.13.3.1 200% of the applicable Ordinary Rate for that Employee's classification.’

[14] By clause 2 of the Agreement, ‘Ordinary Hours’ has the meaning given to it by clause 18.1 of the Agreement. The phrase ‘Usual Working Hours’ has the meaning given to it by clause 18.2 of the Agreement.

[15] Clause 2 of the Agreement contains a definition of ‘Construction Site’ meaning ‘that area of the Longford Gas Plant designated by Esso as the site for the Construction Works. The Construction Site is segregated from the Pre-existing Longford Gas Plant and nothing in this Agreement covers or applies to any works whatsoever on the Pre-existing Longford Gas Plant, except to the extent that commissioning, and tie-in works to the existing plant are included’.

[16] ‘Construction Works’ is also defined in clause 2 as meaning ‘all work related to the “greenfield” construction and commissioning of the Gas Conditioning Plant at the Construction Site and shall include any works incidental or ancillary that will ensure the works can be completed including all mechanical, electrical, instrumentation, installation and the Commissioning Work that the Company is required to perform under its contract with the Client including the installation of machinery and equipment and the provision of services to structures, machinery and equipment carried out on the Construction Site by the Company’.

[17] The Applicant Unions submit that CBI’s capacity to introduce an afternoon shift is circumscribed by clause 18.5.1 of the Agreement. They say that, the words ‘all other changes to Usual Working Hours’ appearing in the last sentence of clause 18.5.1 applies to the introduction of the afternoon shift because the introduction of an afternoon shift constitutes a change to Usual Working Hours. Therefore, the circumstances in which CBI may introduce an afternoon shift are circumscribed by the requirement that such change occur only by agreement between CBI and the relevant delegate.

[18] The Applicant Unions submit that clause 18.2 of the Agreement is clear and unambiguous. They say that it sets out a very clear pattern for Usual Working Hours over a 9 day fortnight and that it is clear from the table that 10 hours will be worked on each day (Monday to Friday) of the working fortnight and that an RDO will fall on the second Monday of each fortnight. It is also clear, according to the Applicant Unions, that the parties intended that no work would be performed on Saturdays or Sundays. By this I assume the Applicant Unions mean no ‘Ordinary Hours’ work since by clause 18.6 of the Agreement, employees will be required to work reasonable overtime, including work on Saturday, Sunday and/or public holidays.

[19] The Applicant Unions contend that clause 18.5 is also clear and unambiguous. They submit that the clause clearly provides that the ‘Usual Working Hours’ may be commenced at any time between 6:00am and 7:00am according to operational requirements as specified, provided that 48 hours’ notice is provided of any changes in this regard. They contend that clause 18.5 clearly anticipates that the parties may wish to make changes to ‘Usual Working Hours’ beyond those specified in the clause and provides a process by which such change may occur. It is clear that this process requires agreement between CBI and ‘the Delegate’.

[20] I do not accept that shift work and the introduction of an afternoon shift is a change to ‘Usual Working Hours’ within the meaning of clause 18.5.1 of the Agreement. My reasons are set out below.

[21] Clause 18.5.1 engages with the concept of Usual Working Hours and allows Usual Working Hours to be changed with the agreement of the Delegate, without penalty. It is apparent that the reference to ‘without penalty’ at the end of clause 18.5.1 means that a Delegate may not withhold agreement to extract for the benefit of employees some additional payment or other term or condition additional to that which is already provided by the Agreement.

[22] Critical to understanding the breadth of the limitation on changes to Usual Working Hours under clause 18.5.1 of the Agreement, is an understanding of the meaning and scope of those words. As earlier indicated, the phrase ‘Usual Working Hours’ has the meaning given to it by clause 18.2. Clause 18.2 sets the parameters and composition of Usual Working Hours on the Construction Site. By clause 18.2.1 the parties agree that Usual Working Hours on the Construction Site shall consist of 90 hours per fortnight. That clause also provides for the Usual Working Hours pattern in the table which follows in the clause and which is reproduced earlier above.

[23] The table sets out the fortnightly pattern of Usual Working Hours with work being performed from Monday to Friday over a fortnight cycle on 9 days of 10 hours working duration on each day worked, with the second Monday being an RDO.

[24] Clause 18.2.2 clarifies the composition of Usual Working Hours on any day worked will comprise of:

• 7.2 Ordinary Hours at the applicable Ordinary Rate;



• the accrual of 0.8 hours at the applicable Ordinary Rate; and



• 2 hours of Overtime.

[25] Clause 18.1.4 provides that the Usual Working Hours shall not exceed 10 hours on any day. This limitation is reflected in the pattern of hours set out in the table and in the composition of Usual Working Hours in clause 18.2.2 of the Agreement.

[26] Shift Work in clause 18.13, for reasons that will become apparent, stands apart from both the Usual Working Hours regime found in clause 18.2 and Ordinary Hours found in clause 18.1, which is integral to clause 18.2. Clause 18.5.1 says nothing about shift work or its introduction nor has it any work to do in that regard.

[27] Neither textual nor contextual considerations support a construction of clause 18.5.1 as applying to shift work or to the introduction of an afternoon shift as the Applicant Unions contend.

[28] Clause 18.2, which deals with and defines Usual Working Hours appears, as CBI has contended, is concerned with establishing the Usual Working Hours for the whole construction site, not discrete additional shifts or shift work more generally. The words in the first sentence of clause 18.2.1 provide ‘Usual Working Hours on the Construction Site’. As earlier indicated, ‘Construction Site’ is a term defined by clause 2 of the Agreement by reference to an area in which ‘Construction Works’ are carried out. Such works are defined by reference to all work related to the ‘greenfield construction and commissioning of the Gas Conditioning Plant at the Construction Site’.

[29] When read in the context of the definitional provisions, clause 18.2, and by extension clause 18.5.1, do not sit comfortably with Shift Work in clause 18.13, if as must necessarily be the consequence of the construction advanced by the Applicant Unions, the parameters and composition of Usual Working Hours for the Construction Site can be altered under clause 18.5.1 of the Agreement by the introduction of an afternoon shift.

[30] A consideration of the construction of clause 18.5.1 must also involve a consideration of ‘Ordinary Hours’. By necessary extension, the construction advanced by the Applicant Unions, would allow “Ordinary Hours” to be altered under clause 18.5.1 of the Agreement. As is apparent from the terms of clause 18.2.2, Ordinary Hours is a critical and major component of the Usual Working Hours on any 10 hour day. Usual Working Hours consist, inter alia, of 7.2 Ordinary Hours.

[31] As earlier indicated, ‘Ordinary Hours’ has the meaning given to it by clause 18.1 of the Agreement. Clause 18.1 regulates Ordinary Hours as follows:

• Ordinary Hours of work shall be 36 hours per week.



• Ordinary Hours of work may be worked on any day or all of the days of the week, Monday to Friday.



• Ordinary Hours shall be worked continuously, except for meal breaks, at the discretion of the Employer between 6:00am and 6:00pm.

[32] Read strictly, the last of these provisions, which deals with the span during which Ordinary Hours may be worked, would severely restrict the capacity to work ordinary hours on afternoon shift or a night shift. Neither the Applicant Unions nor CBI suggested that this provision should be read in that way. 4

[33] It seems to me clear, when one reads clause 18.1 as a whole, particularly the span of hours provision, and harmoniously with clause 18.13 (Shift Work), Ordinary Hours in clause 18.1 must be applicable to day work only and not to shift work. Accepting that a shift worker working a day shift, afternoon shift or night shift is primarily working ordinary hours, the span of hours permitted for shift work is dealt with in clause 18.13.1 of the Agreement.

[34] If, as contended by the Applicant Unions, clause 18.5.1 of the Agreement is the vehicle by which shift work may be introduced, such introduction would necessarily involve, for example in the case of the night shift, an alteration to the span of hours from 6:00am to 6:00pm, to 8:00pm and 8:00am. As CBI have correctly pointed out there is no means by which the span of Ordinary Hours in clause 18.1.3 may be altered vis-a-vis the employees covered by the Agreement who are eligible to be members of the Applicant Unions 5 – by agreement with the Delegate or otherwise.6

[35] CBI has also correctly submitted that on the Applicant Unions’ argument, if shift work is to be introduced through clause 18.5, then this would enable fundamental changes to Ordinary Hours to be introduced. 7 Because of the flexibility inherent in when shift work hours may be worked, both an afternoon and a night shift could be introduced so as to completely displace Ordinary Hours fixed by clause 18.1. Such an outcome is absurd. Moreover, such an outcome might also have implications for the calculation of entitlements under the National Employment Standards (NES) and the Agreement itself.

[36] CBI submitted that pursuant to the NES, various leave entitlements, for example, annual leave accrued progressively during a year of service according to the employee’s ordinary hours of work, and which are paid at the employee’s base rate of pay for the employee’s ordinary hours of work. 8 Section 20 of the Act defines ‘Ordinary Hours of Work’ applicable to award/agreement free employees. Ordinary hours for award/agreement covered employees are those prescribed by the applicable Modern Award or enterprise agreement.9

[37] If, as must necessarily follow on the construction advanced by the Applicant Unions, CBI is able, under the Agreement, to alter the hours of work by introducing shifts, with the effect of reducing or eliminating Ordinary Hours this would create significant tensions with particular NES entitlements. Similarly, payments for periods of annual leave, personal/carer’s leave and compassionate leave under the Agreement are to be made by reference to the amount which the employee would have received for working ‘Ordinary Hours’.  10

[38] As Ordinary Hours defined by clause 18.1 is a concept embedded in ‘Usual Working Hours’, as is evident in clause 18.2.2, the kind of change to Usual Working Hours under clause 18.5.1 must be read harmoniously with the meaning of Ordinary Hours. It seems clear enough that the kind of changes that can be effected to Usual Working Hours under clause 18.5.1 cannot be of a kind that alters Ordinary Hours as defined. The provision can only be read harmoniously if one confines ‘Ordinary Hours’ to day work and consequently Usual Working Hours to day work. It must follow on this construction that clause 18.5.1 has no application to shift work.

[39] Other contextual considerations found in the Agreement supporting this construction include the terms of clause 18.13, which deals with shift work. As is apparent from the provisions earlier extracted, clause 18.13.2 provides that employees agree to work shift work when required by CBI. Clause 18.13.2 is not expressed as being subject to or conditional on agreement under clause 18.5.1. Moreover, the absence of such an express limitation renders the construction advanced by the Applicant Unions as one that seems inconsistent with the unqualified terms of 18.3.2 and 18.3.2.1. The only limitation on CBI’s capacity to require employees to work shift work when required is to be found in the terms of the shift work provisions themselves, namely the requirement to give 48 hours’ notice of CBI’s intention to introduce shift work, including the intended starting and finishing times. The Applicant Unions construction is also inconsistent with the capacity of CBI, it seems without reference to anyone, to vary shift rosters, and on providing 48 hours’ notice to employees, to transfer shift work between shifts or to or from non-shift work, and from one shift cycle to another.

[40] On a plain reading of clause 18.13 of the Agreement and subject to CBI providing the requisite notice, CBI appears to have an unqualified right to introduce shift work. When proper account is taken of the meaning of Usual Working Hours and of Ordinary Hours discussed earlier, then it becomes clear that the unqualified right in clause 18.1.3 of the Agreement is unaffected by clause 18.5.1. This is because clauses 18.1, 18.2 and 18.5.1 are confined in their operation to day work.

[41] CBI also pointed to other contextual considerations found in the Agreement dealing with the contract of employment and consultation, but for my part is unnecessary to deal with those.

[42] It follows that the answer to the first question must be no.

Second question

[43] Turning then to the second question, the AMWU maintains that by the introduction of an afternoon shift some day workers become ‘Day Shift’ workers for the purposes of clause 18.13 of the Agreement and thereby are to receive the commensurate entitlements applicable to an employee performing day shift work. The class of day worker who is a day shift worker is said to be a day worker whose work directly interfaces with afternoon shift workers. 11

[44] The proposition advanced by the AMWU is not supported by the text of clause 18.13. To begin with clause 18.13 makes no reference to one class of worker interfacing with another. Clause 18.13.1.1 defines ‘shift work’ as:

‘. . . any system of work in which operations are being continued by a group of Employees upon work on which another group had been engaged previously and where Employees work either a Day shift, Afternoon shift or Night shift’.

[45] That a day worker interfaces with an afternoon shift worker is beside the point and has no bearing on whether an employee is properly described as a day shift worker. To state the obvious, before there can be shift work, shift work must be required by CBI. That CBI has introduced an afternoon shift does not mean it requires a day shift instead of or in addition to day work. Secondly, though not free from doubt, it seems to me that the reference to ‘Employees’ where last appearing, is a reference to the ‘group of Employees’ first mentioned in the definition and not ‘another group’ who had been engaged previously on work. Thirdly, the reference in the definition to ‘operations are being continued’ is equally able to apply to a situation where the employer operates only an afternoon shift in conjunction with day work, as it is to a situation where three shifts, namely day, afternoon and night, are in operation.

[46] With the introduction of the afternoon shift, the group of employees who work the afternoon shift are participating in a system of work in which CBI’s operations at the construction site are being continued by that group of employees on work on which day workers have been engaged previously. That this is so does not result in the day workers either generally or those whose work might interface with an afternoon shift worker, becoming a day shift worker.

[47] The AMWU’s reliance on enterprise agreements which have application in the power services industry in Victoria, and which contain provisions which deal with the interface of a day worker and shift work, does not assist in the resolution of this dispute which concerns the operation of this Agreement. If anything, the agreements upon which reliance is placed demonstrate in those cases that where parties have intended to alter the position of a day worker’s entitlements when interfacing with shift work, clear words are used to give effect to the intention.

[48] In the present context, the absence of clear words in the Agreement to give effect to the AMWU’s day worker and shift work interface argument is also telling.

[49] The answer to the second question is no.

The AWU and redundancy entitlements

[50] During the course of proceedings, the AWU sought to agitate the issue of the redundancy entitlements for those employees working an afternoon shift under the Agreement. As I have earlier observed, CBI has undertaken that employees who work afternoon shift will receive redundancy entitlements on the same terms as all other employees: that is, payable at the hourly rate set out in clause 25.4 of the Agreement, capped at 90 hours per fortnight. During the course of proceedings, I expressed a view that there appears to be some doubt about the entitlements. That CBI has given the undertaking is suggestive of doubt as to the entitlement. It is to be expected that CBI would make good on its undertaking and there is no reason to suppose that it would not.

[51] In any event, this proceeding is not the appropriate vehicle through which the doubt may be resolved. If there is ambiguity or uncertainty about the redundancy entitlements of shift workers under the Agreement, and the parties appear to agree about what the shift worker entitlement should and was intended to be, the Act makes provision for varying an agreement to remove an ambiguity or uncertainty. This is a course that is open to the AWU if CBI’s undertaking is insufficient to assuage its concerns.

Conclusion

[52] For the reasons given on a proper construction of the Agreement:

• the answer to the first question is no; and



• the answer to the second question is also no.

[53] The disputes in relation to which the Applicant Unions have made application under s.739 of the Act are resolved accordingly.

DEPUTY PRESIDENT

Appearances:

Mr D Vroland for the AMWU.

Mr S Wood and Mr J Sharp for the AWU.

Mr R Dalton of Counsel with Ms R Preston of Counsel for the Respondent.

Hearing details:

2015.

Melbourne.

October 15.

 1   Exhibit 1, Attachment SD-6.

 2   [2014] FWCFB 7447 at [19]-[41].

 3   Exhibit 1, Attachment SD-6.

 4 Transcript PN 508 – PN 536; Outline of Respondent's Submissions at [37].

 5   Noting that clause 24.3(b) of the Electrical, Electronic and Communications Contracting Award 2010, is incorporated by clause 5 of the Agreement and provides that the spread of ordinary hours may be altered as to all or a section of the employees by agreement of the employer and the employee or majority of the employees.

 6   Outline of Respondent's Submissions at [38] and footnote 15 therein.

 7 Ibid at [39].

 8   See s 87(2) and s 90(1) of the Act in relation to annual leave accrual and payment.

 9   See [100] of the Explanatory Memorandum to the Fair Work Bill 2009.

 10   See clauses 23.1.4, 23.2.5 and 23.3.2 of the Agreement.

 11 AMWU Outline of Submission in Response at [2].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR573419>