"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-Queensland Branch v Monadelphous Engineering Pty Ltd
[2019] FWC 7904
•22 NOVEMBER 2019
| [2019] FWC 7904 |
| 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)-Queensland Branch
v
Monadelphous Engineering Pty Ltd
(C2019/1069)
DEPUTY PRESIDENT ASBURY | BRISBANE, 22 NOVEMBER 2019 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Construction of enterprise agreements – temporary shift work arrangements – Whether terms of enterprise agreement permit short term ad hoc night shift work paid at shift work rather than overtime rates.
BACKGROUND
[1] This Decision concerns an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (the AMWU) seeking that the Fair Work Commission (the Commission) deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) under the Dispute Resolution Procedure in clause 15 of the Monadelphous Engineering Pty Ltd QGC Curtis Island Agreement 2018 (the 2018 Agreement). The Respondent is Monadelphous Engineering Pty Ltd (Monadelphous/the Company). A number of conferences of the parties were held and the matter was not resolved.
[2] The dispute has been brought by the AMWU on behalf of a member, Ms Shae McCrae. Ms McCrae works a nine day fortnight roster with shifts from Monday to Friday between 6.00 am and 6.00 pm, and it is not in dispute that Ms McCrae is a Dayworker for the purposes of the 2018 Agreement. The dispute arose when Ms McCrae was given notice of the requirement to work a series of Night Shifts commencing 6 January 2019 and concluding 10 January 2019.
[3] Ms McCrae was paid for those shifts in accordance with provisions of the 2018 Agreement relating to shift work. The AMWU asserts that this payment is incorrect and that Ms McCrae should have been paid at overtime rates for the shifts. The AMWU further asserts that Ms McCrae could not have been required to work the shifts without a roster change in accordance with provisions of the Agreement which require notice of such change and that the proper process was not followed by Monadelphous.
[4] The Parties filed an Agreed Statement of Facts and Questions for Arbitration. Directions were issued requiring the parties to file and serve material upon which they intended to rely and a hearing was conducted. Mr Joshua Blundell-Thornton, Industrial Officer, appeared on behalf of the AMWU. Monadelphous was represented by Ms Peta Willoughby, Special Counsel of Norton Rose Fulbright. While the AMWU initially objected to Monadelphous being granted permission pursuant to s. 596 of the Act to be legally represented at the hearing, it informed the Commission prior to the hearing that after reviewing the material filed it did not press this objection. I granted permission to Monadelphous on the basis that the interpretation of the Agreement involved sufficient complexity such that allowing Monadelphous to be represented would be enable the matter to be dealt with more efficiently. I was also satisfied that no issues of unfairness arose.
[5] Mr Phil Golby, State Organiser, gave evidence on behalf of the AMWU. 1 The following persons provided witness statements on behalf of Monadelphous:
• Mr Bradley Hooper, Former Group Manager Industrial Relations 2; and
• Mr David Slack-Smith, Project Manager. 3
QUESTIONS FOR ARBITRATION AND AGREED FACTS
[6] The questions for arbitration agreed between the parties are as follows:
1. Can an employee be given notice under clause 40 of the Agreement to change roster?
2. Which clauses of the Agreement provide the remuneration rate for Ms. McCrae working the night shifts between 6 January 2019 and 10 January 2019?
a. Is it clause 37 and 39; or
b. Is it clause 43 of the Agreement?
[7] The statement of facts agreed between the parties is as follows:
1. Ms Shae McCrae commenced employment with Monadelphous Engineering Pty Ltd (‘Monadelphous”) on 9 April 2018. This was on a fixed term employment contract.
2. Ms. McCrae’s fixed term employment contract stated she was employed as a Part C “Employees Not Engaged on a Set Roster” employee under the Monadelphous Engineering Pty Ltd QGC Curtis Island Greenfields Agreement 2014.
3. Ms. McCrae had her employment contract subsequently extended three (3) times. The last extension was confirmed on 12 December 2018.
4. The most recent contract extension stated Ms. McCrae was employed as a “Part C 9 Day Roster”.
5. Ms. McCrae’s employment contract included no reference to her being employed as a Shift Worker or a Day Worker.
6. The Monadelphous Engineering Pty Ltd QGC Curtis Island Agreement 2018 (‘the Agreement’) was approved by the Fair Work Commission (FWC) on 20 December 2018. The Agreement came into effect on 27 December 2018.
7. Throughout her time working for Monadelphous, Ms. McCrae predominantly worked a nine (9) day fortnight roster with the Maintenance team but, in May 2018, worked a Monday to Friday roster when transferred to the Projects team. Ms. McCrae then returned to working a nine (9) day fortnight roster.
8. On a nine (9) day fortnight roster, Ms. McCrae’s hours of work are 8.44 ordinary hours per day and worked between Monday and Friday and between 6:00am and 6:00pm.
9. On 31 December 2018 Ms. McCrae was notified by Monadelphous to work night shifts commencing 6 January 2019 and concluding 10 January 2019.
10. Ms. McCrae was paid the following amounts for working these night shifts:
a. Sunday 6 January 2019 – 12.25 hours at double time;
b. Monday 7 January 2019 to Thursday 10 January 2019
• 30.4 ordinary hours;
• 3.36 hours towards a Rostered Day Off;
• 33.76 hours of Night Shift loading of 20 per cent, and
• 15.24 hours at double time.
11. Monadelphous paid Ms. McCrae in accordance with clause 43 of the Agreement.
12. After completing these night shifts Ms. McCrae returned to working a nine (9) day fortnight roster.
[8] During the course of the hearing it became evident that the statement of facts was deficient because it did not address the actual hours that Ms McCrae worked, prior to and when the purported night shift arrangement was implemented. The parties agreed that on a normal day shift while Ms McCrae was working a nine day fortnight her hours of work were 7.00 am to 4.25 pm. On the period when Ms McCrae was rostered to work the night shift arrangement, the rostered shifts were 12.25 hours in length and worked between 6.00 pm and 6.15 am.
PROVISIONS OF THE 2018 AGREEMENT RELEVANT TO THE DISPUTE
[9] The clauses of the 2018 Agreement relevant to the matters in dispute are as follows:
“8. Definitions
“Continuous Shift Work” means where shift work is worked continuously for 24 hours over any 7 consecutive days of the week, Monday to Sunday.
“Set Roster” means either the, Maintenance Roster, Warehouse Roster, or Continuous Shift (Day/Night) Roster, or Shift (Day only) Roster.
“Day Worker” means an Employee whose majority of ordinary hours are performed between the hours of 6:00am and 6:00pm.
“Night Shift” means any shift commencing on or after 6:00pm and finishing subsequent to midnight and at or before 6:00am.
“Shift Worker” means an employee engaged by Monadelphous who is required to work on a shift that is regularly rostered to work weekends and public holidays in circumstances where shifts are continuously rostered 24 hours a day, 7 days per week.
“Rostered Working Days” means any day which an employee is rostered to work.
“Rostered Work Hours” means the total hours an employee is rostered to work per day in their rostered working days. The rostered work hours may consist of ordinary hours and overtime.
37 Ordinary Hours of Work - Day Worker
37.1 The ordinary hours of work shall be an average of 38 hours per week over the Roster Cycle.
37.2 An average of 38 ordinary hours per week over the period of the Employee's roster can be worked provided such period may not exceed four (4) weeks.
37.3 The ordinary hours of work may be worked on any day/s of the week Monday - Friday inclusive and, shall be worked continuously, except for meal breaks between 6.00 am and 6.00pm.
37.4 The spread of ordinary hours may be altered by up to one hour at either end of the spread, by agreement between the Monadelphous and the majority of Employees concerned or in appropriate circumstances, between the Employer and the individual Employee.
37.5 All hours performed outside the spread of hours in sub-clause 37.2 or as agreed in 37.3 shall be paid for at overtime rates.
37.6 All parties and Employees bound by this Agreement commit to:
37.6.1 Flexibility in any way that ordinary hours are organised and worked to meet operational requirements.
37.6.2 Working reasonable and additional overtime.
37.6.3 Be at the crew pre-start meeting each day at the specified start time.
37.7 Attend all training provided by the Monadelphous.
37.8 The Monadelphous may implement any form of ordinary time rosters (with overtime to be determined within those rosters) which are required to meet the needs of the Client including 12 hour days. Indicative roster arrangements are set out in Schedule Two.
37.9 Where an Employee is required to stand down due to a change in shift they shall be paid their ordinary hours they would have worked during their stand down period.”
39 Overtime
39.1 Monadelphous may require an Employee to work reasonable overtime giving full regard to the objectives of this Agreement and of the personal requirements of the Employee.
39.2 All work done outside of the ordinary hours are paid as overtime
Monday to Friday | Time and One-Half for the first 2 hours Double time for all hours thereafter |
Saturday | Time and One-Half for the first 2 hours Double time for all hours thereafter |
Sunday | Double time for all hours |
Public Holiday worked | Double time and one-half for all hours |
Payment is based on the all-purpose hourly rates of pay outlined in Schedule One.
39.3 In computing overtime each day shall stand alone, but when an Employee works overtime which continues past midnight on any one day, such time worked after midnight shall be deemed part of the previous day's work for the purpose of this Clause.
39.4 When overtime is necessary it shall be arranged so that an Employee has ten consecutive hours off duty between the work on successive days without loss of normal hours and without loss of pay for normal hours of work which would have been worked during such absence.
39.5 If on the instruction of Monadelphous, such an Employee remains on duty without having such ten consecutive hours off duty, the Employee shall be paid at the applicable overtime rate of pay until he is released from duty shall then be entitled to ten consecutive hours off duty without loss of pay for normal work hours occurring during such absence.
39.6 The provisions of this clause are equally applicable to an Employee called into work on a Sunday or holiday immediately preceding a normal work day.
39.7 Monadelphous may require an Employee to work reasonable overtime at overtime rates and such Employee may work overtime in accordance with such requirement only after having regard to the Employees family/personal circumstances. The assignment of overtime by Monadelphous shall be based on specific work requirements and the practice of “one in, all in” overtime shall not apply.”
40 Roster Change
40.1 Where it is necessary for Monadelphous to introduce a new roster for permanent Employees not contained within this Agreement, the new roster will not be implemented with less than 4 weeks’ notice, unless agreed by Monadelphous and the majority of affected Employees
40.2 Where it is necessary to move an Employee from one roster to another roster, the Employee will be given at least 3 days’ notice. Where less than 3 days’ notice is given, the first shift will be paid at overtime rates.”
43 Shift Working (Shift Worker)
43.1 The ordinary hours of work for Employees employed as Shift Workers are to be an average of 38 per week averaged over 26 weeks. All ordinary hours worked between midnight Friday and midnight Sunday shall be paid at the applicable overtime rate.
43.2 The ordinary hours on shift work shall include a paid rest break not exceeding twenty (20) minutes.
43.3 The ordinary hours on shift work shall include a paid meal break not exceeding thirty (30) minutes.
43.4 Where an Employee works a 12 hour night shift, the Employee will be entitled to 2 x 30 minute paid breaks, which is in lieu of the 20 minute rest break outlined in Clause 43.2.
43.5 In addition to the wages paid under this agreement, an Employee on Night Shift work shall be paid a flat loading of 20% of the all-purpose rate of pay in Schedule One for each ordinary hour worked.
43.6 All overtime for a Shift Worker shall be paid at double the rate.
43.7 Where less than 5 consecutive shifts are worked then Employees shall be paid at the applicable overtime rate, in lieu of shift loading.
43.8 Where an Employee is required to change or modify their shift roster, the Employee will be given at least 3 days’ notice. Where less than 3 days’ notice is given, the first shift will be paid at overtime rates.”
EVIDENCE AND SUBMISSIONS
AMWU
[10] Mr Golby is responsible for AMWU members employed by Monadelphous covered by the 2018 Agreement. The 2018 Agreement replaced the Monadelphous Engineering Pty Ltd QGC Curtis Island Greenfields Agreement 2014 (the 2014 Agreement). Mr Golby states that during the life of the 2014 Agreement a dispute arose between the Monadelphous and the AMWU and other Unions in relation to the Company’s “attempt to reduce the Employees’ pay when transitioning from a 40 hour, 8 day roster to a 40 hour 9 day fortnight roster”. In an effort to the resolve the dispute the AMWU and other Unions proposed that Monadelphous commence bargaining for the 2018 Agreement.
[11] The 2014 Agreement contained Part B which covered “Set Roster” employees who were paid an annual salary including compensation for ordinary time and overtime and Part C which covered employees not engaged on a “Set Roster”. In the negotiations for the 2018 Agreement, the Company stated that it wanted to move away from engaging employees under Part B or Part C and the Unions agreed on the basis that members wanted Part C “gone”. Mr Golby said that at a meeting on 16 March 2018 there were discussions about the proposed hours of work and the 9 day roster. According to Mr Golby, Company representatives stated during these discussions that all employees other than those on shift were to be engaged as day workers. Mr Golby also said that the Company representatives stated that the Company needed to be competitive and that it wanted all employees to be engaged as day workers and work the same 9 day roster to ensure that they had the same RDO each fortnight. The Union representatives were also told that the roster arrangement was desired by Monadelphous’ client at Curtis Island.
[12] On 5 June 2018, Mr Golby sent a response document to Monadelphous in relation to matters discussed at the meeting on that day. That document was appended to Mr Hooper’s witness statement as Annexure “BH-12”. It contained the current wording of the 2018 Agreement with respect to clause 40 (numbered in the version sent by Mr Golby as clause 39). Mr Golby’s version amended the heading to what was then clause 42 from “Shift Work” to “Shift Working (Shift Worker)” and inserted the following sub-clause numbered clause 42.7:
“Where a shift worker is required to change or modify their shift and work on a shift that does not continue for their normal rostered requirement or 5 consecutive shifts the employees shall be paid at their applicable overtime rate until such Employee is back on their normal roster.”
[13] It was Mr Golby’s understanding that the new provisions would result in the “default engagement for all employees covered by the 2018 Agreement to be Day Workers”. Mr Golby also understood that all employees would be transitioned to the 9 day roster and engaged as Day Workers unless told they were Shift Workers. This would include those employees engaged as Part C employees under the 2014 Agreement. It is Mr Golby’s belief that less than half a dozen employees are currently engaged as shift workers with the remaining employees engaged as day workers. The shift workers primarily work as relief workers. Monadelphous has not introduced a different roster for day workers other than the 9 day roster.
[14] In his reply statement, Mr Golby said that he had not previously seen the minutes appended to Mr Hooper’s statement in these proceedings. Mr Golby disagreed with Mr Hooper’s evidence that meetings on 24 and 25 January 2018 were bargaining meetings in relation to the 2018 Agreement and maintained that the meetings were in relation to the 2014 Agreement and its operation. According to Mr Golby, the meeting on 24 January 2018 discussed the following matters:
• The underpayment of wages by Monadelphous over the Christmas period;
• Mr Hooper’s proposal for how employees would be paid while they worked night shift which was not agreed by Mr Golby; and
• That Monadelphous was now ready to commence negotiations for the 2018 Agreement and would send out the notice of representational rights.
[15] At the meeting on 25 January 2018 there were further discussions about Mr Hooper’s proposal but no agreement was reached. That meeting ended with a proposal for the first bargaining meeting to commence on 21 and 22 February 2018. In relation to Mr Hooper’s statement about those meetings, Mr Golby said that Mr Hooper asked if the Company was able to have day workers working night shift and Mr Golby responded by stating that they could but did not go into detail about how such employees would be remunerated. Mr Golby said that his position has always been that a day worker who works outside his or her ordinary spread of hours should be paid the appropriate overtime rate. Mr Golby also states that there was never any agreement between him and Mr Hooper that the practice adopted by the Company under the 2014 Agreement would continue under the 2018 Agreement. In this regard Mr Golby points to the fact that clause 5.5 of Part B of the 2014 Agreement (referred to by Mr Hooper in his evidence) which allowed for employees to work 12 hour shifts for short periods of time, was not included in the 2018 Agreement. Mr Golby said that he took the non-inclusion of this provision in the 2018 Agreement to mean that a different practice would now apply.
[16] Mr Golby agreed with Mr Hooper’s evidence that there were numerous disputes about the operation of the 2014 Agreement and that these included disputes about changes in roster, the operation of the annualised salary and the movement of employees between Part B and Part C. It was Mr Golby’s intention to achieve significant change in the 2018 Agreement by moving away from the problematic 2014 Agreement and creating a new document. It is Mr Golby’s belief that the significant changes are the removal of Part B and Part C and the rosters.
[17] Under cross-examination Mr Golby agreed that at the meeting on 24 January 2018 the Company raised the intention of renegotiating the 2014 Agreement and by that time the Union was in discussions with the Company for a new agreement. 4 Mr Golby also agreed that the Company had advised that it was under financial scrutiny from the client, its contract was out for expressions of interest and needed to remain competitive.5 Mr Golby further agreed that following a meeting on 22 February 2018 the Company provided a proposed new agreement which eliminated the Part B and C structure and was otherwise based on the 2014 Agreement. The AMWU also gave the Company its log of claims on that day. Mr Golby agreed that the AMWU’s log included a reference to roster changes and longer notice periods for such changes. The AMWU also sought better consultation about shut-down roster changes. These matters were not agreed by Monadelphous.
[18] Mr Golby was also asked about the heading of clause 42 of a draft agreement tabled by the AMWU on 5 June 2018 and agreed that he had amended the heading “Shift Work” by adding the words “(Shift Worker)”. Mr Golby maintained that this change was discussed during bargaining. Mr Golby also agreed that in the AMWU proposal he had deleted two sub-clauses from clause 36 Ordinary hours of Work – Day worker (clause 36.3 and 36.4) which provided that days workers could work shift work as required and provide work coverage if required on a continuous basis. Further, Mr Golby agreed that the note he had included in the margin of the AMWU draft in relation to these deletions said: “You have included a new Clause in 39 that covers this off”. Clause 39 of the 5 June draft was included in the final version of the 2018 Agreement and numbered as clause 40. Mr Golby agreed that on 5 June 2018 when he circulated the draft that he was aware of the view that day workers could be required to work shift work and to provide work coverage on a continuous basis. In response to the proposition that day workers could be directed to work a changed roster including shift work and continuous work as required pursuant to clause 40 of the Agreement Mr Golby maintained that this would have to be in line with clause 36 (clause 37 in the final version of the 2018 Agreement which deals with Ordinary hours of work – Day Worker) but that clause 40 allows a changed roster.
[19] Mr Golby was also cross-examined about clause 5 of Part B of the Agreement and accepted that the Company advised that it did not wish to change that clause because it entitled the Company to change the roster as required. Mr Golby agreed that Company representatives had stated that sub-clauses 5.1 and 5.2 operated independently and that both had been included in the 2018 Agreement with only a minor amendment to the effect that the provisions were to apply to permanent employees only. Mr Golby also agreed that he had sought an amendment to clause 42.7 so that the provision in relation to overtime being paid if a worker was required to modify their roster and did not work five consecutive shifts only applied to shift workers and that this had not been accepted by Company representatives in the negotiations and had not been included in the final version of the clause which became 43.8 in the 2018 Agreement. In response to the proposition that he had sought this change because he knew that the clause applied to all workers and not just shift workers, Mr Golby said that the change was for clarity but conceded that it could be interpreted as applying to all workers.
[20] In relation to clause 5.5 of Part B of the 2014 Agreement, Mr Golby agreed that the clause relates to the requirement for day workers to work 12 hour shifts or nightshifts in some circumstances such as shut downs and that there was some discussion about this clause in the bargaining meeting on 29 June 2018 that the Company would put forward alternative wording which would enable day workers and shift workers to work shift work and shut down arrangements. Mr Golby was shown Annexure “BH-19” to Mr Hooper’s statement being the final offer made by Monadelphous with respect to the 2018 Agreement. Mr Golby agreed that Mr Hooper had advised that the Unions’ proposal for roster changes had been rejected and that clauses 43.7 and 43.8 as proposed by Mr Hooper and included in the 2018 Agreement did not include the word “shiftworker”.
[21] Mr Golby also agreed that the term “shiftworker” was included in clauses 43.1 and 43.6 and that he had instigated amendments to both of those clauses. Further, Mr Golby agreed that the provisions of clause 43 were the subject of intense negotiations and that he had an opportunity to propose changes to that clause as it appeared in drafts of the 2018 Agreement and that some changes were accepted and some rejected and that his proposed changes to clause 43.7 were rejected. Mr Golby did not accept that this meant that the clauses 43.5 and 43.7 are not limited to shift workers. In response to questions from me, Mr Golby said that he had stated to Mr Hooper that day workers could work shift work but had not agreed on the remuneration for such work.
[22] The crux of the AMWU ’s position as reflected in its submissions, is that clause 43 of the 2018 Agreement only applies to Shift Workers, and not to Day Workers such as Ms McCrae, and that consequently, the process outlined in clause 40 for a change to a roster is the only method by which the Company can change the roster of a day worker.
[23] In relation to the first question for arbitration, the AMWU submits that the plain and ordinary meaning of clause 40 is that it provides a process by which Monadelphous can introduce a new roster (clause 40.1), and have employees moved onto that roster (clause 40.2). It follows that until Monadelphous has introduced a new roster under sub-clause 40.1, an employee cannot be moved to a new roster.
[24] The AMWU submits that the process in clause 40 only applies to those employees engaged as Day Workers under the 2018 Agreement, and that clause 43.8 of the Agreement provides a distinct process for changing Shift Workers onto a different shift roster. Therefore under the Agreement there are only two ways the company can change the roster of an employee: by using the process in clause 40 which applies to Day Workers or as provided in clause 43.8 which applies to a shift roster for Shift Workers. 6 The AMWU asserts that the inclusion of the word “shift” in clause 43.8, and its appearance in the heading of clause 43, is important in delineating that only Shift Workers can change between shift rosters and that the provisions do not apply to Day Workers.
[25] At present the only roster (non-shift roster) provided for by the Agreement is a 9 Day roster contained in Schedule 2, which is the only roster worked by employees engaged as Day Workers. Monadelphous has not undertaken the process to introduce a new roster for permanent employees under clause 40.1. The AMWU submits that clause 40 only gives the Company the ability to move a Day Worker from one roster to another once a new roster has been created. As a new roster has not been created under clause 40.1, the Company is not able to move a Day Worker to another roster under clause 40.2.
[26] In relation to the second question for arbitration the AMWU submits that the correct clauses to calculate the remuneration of Ms. McCrae are clauses 37 and 39 of the 2018 Agreement. Ms. McCrae’s employment contract states she is employed as a “Part C 9 Day roster” employee. The classification of a Part C – Employees not engaged on a set roster does not exist in the 2018 Agreement. The AMWU asserts that the Agreement only provides for the engagement of employees as either Day Workers or Shift Workers, and this lack of clarity in relation to Ms McCrae’s employment status creates an ambiguity. In this regard, the AMWU relies on the principles in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd 7 to submit that the Commission may give regard to the evidence of surrounding circumstances to assist in determining the matter.
[27] The circumstances said to be relevant are that during the negotiations for the 2018 Agreement, both the AMWU and the Company sought to remove reference to Part B or C employees in the proposed Agreement, and it was the Company’s preference that all employees were to be moved to the same 9 – day fortnight roster which resulted in all employees working the same hours and having the same RDO. The parties agreed that this would be the roster worked by employees engaged as Day Workers. This is distinct to the shift rosters worked by Shift Workers. 8
[28] The AMWU submits that Ms McCrae works a 9 – day roster, except for the overtime periods worked on shift rosters. The only employees covered by the Agreement who work a 9 – day roster are those employees engaged as Day Workers. Employees who are engaged as Shift Workers work one of the shift rosters provided in schedule 2 of the Agreement. These are worked exclusively by employees engaged as shift workers. The AMWU submits none of the shift rosters provide for the 9 – day roster worked by Ms. McCrae.
[29] The AMWU submits that when the Agreement and surrounding circumstances are considered in their entirety, Ms. McCrae would be considered a Day Worker under the 2018 Agreement, and accordingly clause 37 and 39 of the Agreement are the correct provisions for calculating the payment of overtime completed by Ms McCrae. Further, the AMWU submits that clause 43 specifically provides hours of work and overtime for Shift Workers, and does not apply to Day Workers.
[30] The AMWU also submits that Ms McCrae’s employment contract does not state she is engaged as a shift worker and she does not work on one of the prescribed shift rosters in Schedule 2. Clause 43 is clear in that it only applies to those employees engaged as Shift Workers. Several of the sub-clauses in clause 43 make reference to “Employees” without stating Shift Worker. The AMWU asserts this does not undermine the application of these clauses to only Shift Workers. The AMWU relies on the decision of the Federal Court in Shop Distributive and Allied Employee’s Association v Woolworths Ltd in its submission that when interpreting agreements consistency in meaning of terms will often be absent which can result in the same word used in different provisions having different meanings. 9 The AMWU submits this position should be adopted when considering the meaning of the word “Employees” within the confines of clause 43 as it would only refer to those employees engaged as Shift Workers.
[31] In oral submissions for the AMWU, Mr Blundell-Thornton said that there is a distinction between the term “roster” and “shift roster” and that day workers work the former not the latter. A shift roster requires that ordinary hours are work on weekends while the maintenance roster is a Monday to Friday roster. It was also submitted that the cross-examination of Monadelphous’ witnesses established that there is no ad hoc night shift roster and that all shift rosters are included in Schedule 2 of the Agreement. Mr Blundell-Thornton agreed that the effect of his argument is that if the Company transfers a day worker to one of the night shift rosters in Schedule 2 the Company is effectively introducing a new roster and is required to consult and give notice to this effect. Absent the introduction of a new roster as provided for in the 2018 Agreement, the Company is required to pay overtime rates to employees.
Monadelphous
[32] Mr Hooper gave evidence about the negotiations for the 2018 Agreement and a roster dispute prior to the commencement of those negotiations. According to Mr Hooper, in or around October 2017, a dispute arose in relation to the application of certain provisions of the 2014 Agreement which related to the desire of the Company to move some employees employed on a maintenance roster under Part B of the 2014 Agreement from an eight day to a nine day fortnight. Mr Hooper said that this would make their arrangements more similar to employees who were working under Part C of the 2014 Agreement. As part of the resolution of the dispute in 2016, a written agreement reached in settlement of the roster dispute was referred to indicating that employees could be requested to work 12 hour night shifts during shutdowns and providing for payments of shift allowance and overtime where the night shift did not continue for five consecutive nights or where time was worked outside the rostered shifts. 10
[33] Mr Hooper also gave evidence about the negotiations for the 2018 Agreement and tendered notes of those meetings which were circulated to Company representatives. As part of the negotiations the Unions sought to change arrangements for employees temporarily working night shifts and the Company resisted such change. Mr Hooper tendered a copy of a document circulated in March 2018 including claims made by the Unions and the Company’s responses. That document indicates that the Unions were seeking longer notice periods for roster change which was not agreed by Monadelphous. 11 Meeting minutes tendered by Mr Hooper also indicate that this item continued to be sought by the Union negotiators. The minutes also indicate that the Unions were seeking all rosters be included in the Agreement while the Company sought to include only indicative rosters. Mr Hooper also tendered a marked up copy of a draft agreement which was provided to the Company on 5 June 2018 by Mr Golby and included Mr Golby’s comments about various clauses. That document indicates that Mr Golby proposed the deletion of requirements in clause 36 (which provided for ordinary hours for day workers), that day workers work shift work as required and that they provide work coverage if needed on a continuous basis. Mr Golby’s note in relation to those deletions is that that the Company has included a new clause 39 that covers this off. Clause 39 of the draft is in identical terms to clause 40 of the 2018 Agreement.
[34] According to Mr Hooper, the issue of temporarily assigning employees to perform night shift work arose again in the bargaining meeting and it was proposed that Monadelphous would revert to the Unions with some proposed wording based on clause 5.5 of Part B of the 2014 Agreement. The minutes of that meeting state: “Current clause 5.5 Day workers to shift work/Shutdown arrangements. Company to come back with wording for new agreement.” 12
[35] On 17 July 2018, Mr Hooper sent the Company’s final offer in the form of a proposed agreement to the Union negotiators. The covering email sent with the proposed agreement stated that the Company had not agreed to the Unions’ proposal in relation to roster changes but had inserted clauses 40 and 43.8 to deal with this matter. Clauses 40 and 43.8 were included in the version of the Agreement approved by a majority of employees. It is apparent from the versions of the 2018 Agreement appended to Mr Hooper’s statement that the draft Agreement proposed by Mr Golby (Annexure BH-4 to Mr Hooper’s witness statement) had removed the ability of the weekly spread of hours for Day Workers (clause 36 in that version) to be worked between Monday and Sunday and that the weekly spread proposed by Mr Golby was Monday to Friday and that a note inserted by Mr Golby in relation to this change stated that this is a day worker and that Monadelphous had specified a nine day fortnight for such employees which did not include Saturdays and Sundays. This proposal was accepted by the Company in its final version (Annexure BH-19) and appears in that version in clause 37 Ordinary Hours of Work – Day Worker as sub-clause 37.3 which states that: “The ordinary hours of work may be worked on any day/s of the week Monday to Friday inclusive and shall be worked continuously except for meal breaks between 6.00 am and 6.00 pm.” The final version also included an additional provision in clause 37.1 which allowed for the 38 ordinary hours per week for Day Workers to be averaged over the “Roster Cycle”.
[36] A vote in relation to this proposal did not result in approval by a majority of employees. A further vote on 19 September 2018 was successful with no changes being made to the final version of the Agreement. Under cross-examination Mr Hooper agreed that there had been several disputes under the 2014 Agreement in relation to shift work but maintained that the objective of the Company in negotiating the 2018 Agreement had been to put in place a nine day fortnight roster and remove annualised salary provisions. Mr Hooper agreed that clause 5.5 of the 2014 Agreement had not been rolled over into the 2018 Agreement except for the provision in 5.5.1 and that there were some substantial changes between the 2014 and the 2018 Agreement. When asked whether Mr Golby or any AMWU official agreed to the practice under the 2014 Agreement of day workers temporarily working night shift, Mr Hooper said that the AMWU had a different view about how workers should be paid in such circumstances and had opposed the approval of the Agreement generally. Mr Hooper maintained that Monadelphous’ position was that although clause 5.5 of Part B of the 2014 Agreement was not included in the 2018 Agreement the previous practice of temporarily rostering employees on night shifts would be maintained. Mr Hooper acknowledged that it was clear that Mr Golby did not agree with that practice but that the Company believed its continuation was covered by clause 40 of the 2018 Agreement.
[37] Mr Slack-Smith gave evidence about the recruitment and employment of Ms McCrae. Ms McCrae commenced employment on a fixed term contract for the period from 9 April 2018 to 31 May 2018. Ms McCrae was employed to provide support to the Company’s maintenance crew during a shut down. At the time of commencement Ms McCrae’s employment was covered by the 2014 Agreement. Initially Ms McCrae worked a 9 day fortnight roster until 4 May 2018 when she was transferred to the Projects team and worked a Monday – Friday week for 7.6 hours per day, pending the commencement of the shutdown. When the shutdown commenced, Ms McCrae worked a Monday to Friday “Warehouse Roster” with no RDOs. Ms McCrae’s contract was extended on a number of occasions up to 28 June 2019. In that time the 2018 Agreement was approved and commenced applying to Ms McCrae’s employment from 27 December 2018.
[38] Mr Slack-Smith is aware from his review of Monadelphous’ records that Ms McCrae has worked 17 night shifts during her employment as follows:
• Four night shifts from 30 July 2018 to 2 August 2018;
• Two night shifts on 14 and 15 November 2018;
• Four night shifts from 10 to13 December 2018;
• Five night shifts from 6 to 10 January 2019 (the relevant shift for the purposes of this dispute); and
• Two night shifts on 24 and 25 January 2019.
[39] The relevant shifts were required to perform a change out for a valve on the marine loading arm, which is part of routine preventative maintenance. This particular work takes place every twelve months and is scheduled by Monadelphous’ client. Ms McCrae and other workers were advised on 31 December 2018 of the requirement to work alternative shifts during the change out. Ms McCrae was paid for the shifts as follows:
• Sunday 6 January 2019 – 12.25 hours at double time;
• Monday 7 January to Thursday 10 January 2019 – 30.4 hours of ordinary time, night shift loading of 20% and 3.36 hours accrued towards a rostered day off; and
• 15.24 hours of double time.
[40] Ms McCrae’s usual roster is made up of 8.89 hours worked on 9 days each fortnight with each day comprising 7.6 hours of ordinary time, 0.84 hours accrued towards a rostered day off and 0.45 hours of overtime. This equates to 38 ordinary hours per week and two hours of overtime. On each of the night shifts rostered on week days, Ms McCrae’s working hours were 12.25 made up of:
• 7.6 ordinary hours;
• 0.84 hours accrued towards fortnightly rostered days off; and
• 3.81 hours of overtime.
[41] According to Mr Slack-Smith, payment at the rate of double time on Sunday is usual practice and consistent with all sites in Central Queensland, however Ms McCrae was overpaid because overtime should be paid at time and a-half for the first two hours and double time thereafter rather than double time on all hours of overtime. Mr Slack-Smith said that the 2018 Agreement contains a number of indicative rosters consistent with Monadelphous’ operation at Curtis Island and this continues to the present day. Some indicative rosters in the 2018 Agreement are identical to those in the previous 2014 Agreement with some differences, being the maintenance roster and the continuous shift (day/night) roster. Under the 2014 Agreement the maintenance roster provided for an eight day fortnight and now provides for a nine day fortnight as agreed. The continuous shift roster now has two variations termed Roster 1 and Roster 2.
[42] Mr Slack-Smith states that for the shifts relevant to this dispute, Ms McCrae was temporarily removed from her usual roster – the Maintenance Roster in the 2018 Agreement – to a short term night shift roster. This was consistent with Mondelphous’ practice over many years, and while there have been disputes about appropriate payments in such circumstances there has never been an issue with respect to the Company’s ability to work employees on temporary night shifts. Mr Slack-Smith was not heavily involved in the negotiations for the 2018 Agreement but was regularly briefed on progress by Mr Hooper. Mr Slack-Smith supported Mr Hooper’s proposals and provided advice to him about the Company position throughout the negotiations.
[43] Under cross-examination Mr Slack-Smith agreed that all indicative rosters in the 2018 Agreement are set out in Appendix 2 and that those rosters do not include a short term night shift roster. Mr Slack-Smith further agreed that Monadelphous has not consulted with employees about the introduction of such a roster. In relation to the negotiations for the 2018 Agreement, Mr Slack-Smith said that he was aware of a dispute about night shift but did not know whether the 2018 Agreement was intended to resolve that dispute. Mr Slack-Smith agreed that there were changes between the two Agreements including the removal of Parts B and C and the introduction of a nine day roster instead of an eight day roster. Mr Slack-Smith also agreed that there was a fair amount of “roll over” between the two Agreements even though there were some significant changes. Further, Mr Slack-Smith agreed that there had been an attempt to address flexibility and remuneration for people transferring to night shift.
[44] One of the changes in this regard was the introduction of paid stand down in the 2018 Agreement. Part B workers had mainly been day shift workers and remained on the Maintenance Roster. In response to the proposition that there had been no common understanding between the Company and the AMWU in relation to how day workers or previous Part B workers would be paid when they were temporarily transferred to night shift, Mr Slack-Smith said that from the discussions he had with Mr Hooper he assumed there was an understanding on this point.
[45] In re-examination, Mr Slack-Smith said that Ms McCrae was employed as a Part C employee and it was not the case that only Part B employees became day workers under the 2018 Agreement. Mr Slack-Smith also said that part of the resolution of the dispute over payment to employees temporarily working night shifts was the introduction of paid stand down provisions in the 2018 Agreement.
[46] Monadelphous submits that it operates a range of rosters at the Curtis Island QGC LNG site (Site). Predominantly, those rosters consist of:
• a 76-hour, 9-day fortnight roster, generally worked by the Respondent’s Maintenance crews (known as the Maintenance Roster);
• a 38-hour weekly Monday to Friday roster, generally worked by the Respondent’s Project crews (known as the Warehouse Roster); and
• a continuous shift roster (known as the Day/Night roster).
[47] In addition, Monadelphous operates a 12-hour Night Shift roster on an ad hoc basis as needed to meet operational requirements, including to carry out shutdown work or other significant maintenance or repairs on equipment at the Site. It generally consists of 12 hour shifts from 6.00 pm to 6.00 am. Monadelphous asserts that Ms McCrae’s contract provides for a high degree of flexibility in her working arrangements, evidenced by a number of provisions of the contract, including that the Company may at its discretion, implement any form of ordinary time rosters (with overtime determined within those rosters) that are required to meet the needs of the client and that Ms McCrae may also be required to work shift work as requested from time to time.
[48] Ms McCrae was provided notice of the requirement to work a series of Night Shifts commencing 6 January 2019 and concluding 10 January 2019. The practice adopted by Monadelphous is that:
a. where four or fewer Night Shifts are performed, the relevant shifts are paid at the employee’s overtime rates; and
b. where five or greater Night Shifts are performed, the relevant shifts are paid at the employee’s standard rates for ordinary hours, plus a 20% Night Shift loading. Additional hours performed due to the extended shift length are paid at overtime rates.
[49] The Company’s submission is that this practice is supported by clause 43 of the Agreement. Monadelphous agrees with the AMWU’s submission that there is an ambiguity in the Agreement, but disagrees with the proposition that the ambiguity is because of a lack of clarity regarding Ms McCrae’s employment status. 13 Monadelphous submits Ms McCrae is unambiguously a day worker for the purposes of the Agreement due to the fact that:
a. “Day Worker” as defined in Clause 8 of the Agreement means an Employee whose majority of ordinary hours are performed between the hours of 6:00am and 6:00pm. Monday to Friday inclusive; and
b. Ms McCrae is not engaged on continuous shifts and, whilst she has worked a range of shift patterns throughout her employment with Monadelphous, those shift patterns have consistently required her to work the majority of her ordinary hours between the hours of 6.00 am to 6.00 pm, Monday to Friday, notwithstanding that some work has been performed outside of that span of hours.
[50] Monadelphous maintains that a relevant ambiguity does exist within the Agreement, but that this ambiguity arises from the definition of a Shift Worker contained in Clause 8 of the Agreement. Therefore, Monadelphous submits the Commission is entitled to have regard to material relevant to the intentions of the parties in relation to that ambiguity, but such material is not admissible to contradict the plain meaning of the document concerned. 14 According to Monadelphous’ submission, references in clause 43 of the 2018 Agreement to shift work (a term which is undefined), or employees working night shift, are not exclusive references to Shift Workers and many provisions of clause 43 are applicable to employees other than Shift Workers. The Company asserts the definition of the term Shift Worker in clause 8 of the 2018 Agreement is nonsensical and gives rise to an ambiguity.
[51] Monadelphous accepts that the words “Shift Worker” appear within the heading to clause 43, but does not accept that the inclusion of the words “Shift Worker” in the heading means the clause in question applies only to Shift Workers. This is because:
(a) an enterprise agreement is a statutory instrument and is therefore susceptible to the usual rules of construction applying to statutory instruments;
(b) it is a common principle of construction that regard ought only be had to headings in statutory instruments where there is an ambiguity on the face of the text;
(c) on balance, and subject to the ambiguity arising in the definition of a shift worker, the text of clause 43 is clear and no recourse to the heading is required or justified;
(d) in the alternative, this is a case where the text should not be confined with reference to the heading because:
(i) the history of the 2018 Agreement makes it clear that the provision in question was not intended to be limited in the manner proposed by the AMWU; and
(ii) the title itself is infected by the ambiguity of the term “Shift Worker”.
[52] The Company asserts the shift worker definition is ambiguous as it is impossible to assign the definition any clear meaning, particularly having regard to any condition that may be applied regarding work performed on weekends and public holidays. This ambiguity affects the interpretation of any clause in which the phrase itself appears, including sub-clauses 43.1 and 43.6.
[53] The Company submits that sub-clauses within clause 43 of the 2018 Agreement, other than sub-clause 43.1 and 43.6, are prima facie not precluded from applying to employees other than Shift Workers, noting that term is ultimately defined within the context of the Agreement including Ms McCrae. Further, it submits it is unnecessary to resolve the ambiguity referred to in order to resolve the questions before the Commission in these proceedings if the Commission accepts its submissions on that point.
[54] The Company contends that it was entitled to provide Ms McCrae notice of the requirement to work a series of Night Shifts and pay her for those shifts in accordance with clause 43.5 of the Agreement. The Company asserts this practice is supported by clause 43 of the Agreement. The Company also refers to the definition of “Night Shift” in clause 8 of the Agreement in support of its submission.
[55] Further, the Company contends that workers other than Shift Workers, regardless of how the term is defined, are not excluded from working night shift either in the definition of “Night Shift” or by any term in the Agreement. It is also contends that in a number of the sub-clauses of clause 43, the term Shift Worker does not appear and if the provision was intended only to apply to Shift Workers this could have been made clear by:
(a) substituting the defined term Shift Worker for the term Employee throughout sub-clauses 43.4, 43.5, 43.7 and 43.8;
(b) including a defined term “Shift Work”, with reference to Shift Workers; or
(c) modifying the references to Night Shift to refer to Shift Workers.
[56] Monadelphous submits that as none of these steps were taken it is open to the Commission to infer that it was not the intention of the parties to exclude Employees from performing Night Shift in accordance with clause 43 unless they are Shift Workers as defined in the Agreement (whatever that definition may be interpreted to mean).
[57] Monadelphous also refers to the AMWU’s submission, which relies upon the case of Shop Distributive and Allied Employees’ Association v Woolworths Limited, to the effect that in the interpretation of enterprise agreements, the same word used in provisions may carry different meanings. Monadelphous contends that this authority is not relevant in the current circumstances as the AMWU’s submission is directed to the application of one meaning to different terms.
[58] The Company contends that the AMWU’s submission that the term “Employees”, used in clause 43, should be taken to mean “Shift Workers” should be rejected on the basis that “Employee” has a clear and unambiguous definition in the 2018 Agreement, meaning “an Employee to which this Agreement applies”. Monadelphous further submits that the history of the negotiations for the Agreement is relevant to the context of clause 43 and relies on the evidence given by Mr Hooper to the effect that:
• the 2018 Agreement was negotiated between the Company and employee bargaining representatives, including the AMWU, over the course of approximately nine months in 2018;
• the 2018 Agreement was in part based on the previous enterprise agreement for the Site – the 2014 Agreement;
• the 2018 Agreement divided employees on the Site into two groups, which were known as Part B and Part C (due to the structure of the 2014 Agreement into three parts, with Part A applying to all employees);
• it was agreed at the first bargaining meeting on 24 January 2018 that the distinction between Part B and Part C would be eliminated in the new agreement;
• the 2014 Agreement contained a mechanism for Part B employees to be transferred to temporarily perform night shifts as needed to meet operational requirements, found in Part B, clause 5.5 of the 2014 Agreement;
• clause 5.5 of the 2014 Agreement was a matter which was debated during the negotiations for the new agreement;
• operational imperatives were acting upon the Company during the negotiation period which required the Company to maintain flexibility and achieve cost-efficiencies;
• this is demonstrated in several areas of the 2018 Agreement, including clause 37 with respect to the commitments of the parties to flexibility in the way that ordinary hours are organised and worked to meet operational requirements;
• one of the union claims during the negotiations was that, instead of including a provision similar to clause 5.5 of the 2014 Agreement in the new agreement, workers should be paid double time for any night shifts required (unless they were continuous shift workers);
• the Company consistently refused this claim on the basis that to accept it would reduce flexibility and increase labour cost;
• this was unacceptable to the Company because the necessity for occasional night shift work is a routine operational requirement for the Site; and
• in bargaining for the new agreement, the Company wished to retain its practice of transferring employees to temporarily perform night shifts as needed to meet operational requirements. 15
[59] The Company asserts that there is authority for the proposition that if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. 16
[60] Further, it submits that the AMWU knew that Monadelphous required this flexibility and intended to continue the night shift arrangements because an early draft of the agreement contained the following wording, based on Part B, clause 5.5 of the 2014 Agreement:
“36.5 All parties and Employees bound by this Agreement commit to:
36.5.1 Flexibility in any way that ordinary hours are organised and worked to meet operational requirements.
36.5.2 Working reasonable and additional overtime.
36.4.3 Working shift work as required.
36.4.4 Providing work coverage if required on a continuous basis.
36.5.3 Be at the crew pre-start meeting each day at the specified start time and remain at the workface until their designated finishing time.
36.5.4 Attend all training provided by the Monadelphous. [sic] (Emphasis added.)
[61] In approximately April 2018, Mr Golby deleted the references to shift work (clause 36.4.3) and coverage on a continuous basis (clause 36.4.4) in a draft circulated to bargaining representatives, and in doing so made the comment “You have included a new Clause in 39 that covers this off”. It is also submitted that it is implicit in Mr Golby’s comment that he knew that shift work and continuous coverage were an inherent part of the Respondent’s operational requirements. 17
[62] Monadelphous submits that neither the plain expression of clause 43 nor the facts and circumstances of its negotiation are capable of supporting the inference that it is, in its entirety, to be regarded as only applying to Shift Workers. Further, the facts and circumstances suggest a mutual intention by each of the parties to continue the existing arrangements under the 2014 Agreement which permitted employees to be paid a flat loading for ordinary hours performed on night shift, as set out in clause 5.5, Part B of the 2014 Agreement and clauses 43.5 and 43.7 of the 2018 Agreement.
[63] Monadelphous contends that the AMWU’s submission in relation to the operation of clause 40 is misconceived on the basis it is inconsistent with the meaning of sub-clauses 40.1 and 40.2 on a plain reading of the text and places an impermissible gloss over the plain meaning of the words. In particular Monadelphous submits that sub-clause 40.1 is, when taken alone, complete, clear and unambiguous. No element of sub-clause 40.1 refers to or derives any meaning from sub-clause 40.2. Similarly, sub-clause 40.2 is, when taken alone, complete, clear and unambiguous and no element of sub-clause 40.2 refers to or derives any meaning from sub-clause 40.1. Both sub-clauses are capable of standing alone and carrying a separate and distinct meaning.
[64] Accordingly, Monadelphous submits the contentions made by the AMWU to the following effect must be rejected:
a. that the relevant provisions cannot be separated;
b. that the relevant provisions ‘are both required to complete each other’;
c. that sub-clause 40.2 “can only be activated once the respondent has completed the process in sub-clause 40.1”; and
d. inferentially, that an employee cannot be moved to a roster other than a “new roster”, which terminology does not appear in sub-clause 40.2. 18
[65] Monadelphous submits that it is disingenuous of the AMWU to suggest that clause 40 is only intended to permit the Company to move an employee between rosters after following a process to introduce a new roster, on the basis that during the negotiations, Mr Golby implied that the provision which eventually became clause 40 of the 2018 Agreement offered the Respondent the flexibility it required to roster its workforce to work shift work as required and to provide work coverage on a continuous basis if required.
[66] Monadelphous further submits that neither the plain expression of sub-clause 40.2 nor the facts and circumstances of its negotiation are capable of supporting the AMWU’s assertion that does not support the ad hoc rostering of employees on night shift either upon the provision of the required amount of notice (three days) and in the absence of the introduction of a “new” roster pursuant to sub-clause 40.2.
[67] Accordingly, Monadelphous contends that in rostering Ms McCrae to work night shifts between 6 January 2019 and 10 January 2019, it was entitled to rely upon either or both of:
a. sub-clause 40.2, by requiring Ms McCrae to temporarily move to the night shift roster; or
b. sub-clause 43.8, by requiring Ms McCrae to temporarily change or modify her roster to work night shifts.
[68] Monadelphous was entitled to roster Ms McCrae on night shifts upon the provision of three days’ notice and was further entitled to pay Ms McCrae in accordance with sub-clause 43.5 of the 2018 Agreement. Further, Monadelphous submits that as Ms McCrae was paid in accordance with sub-clause 43.5, as it was entitled to do, clause 37.5 is, by implication, excluded from applying to the night shifts worked by Ms McCrae in the period from 6 January 2019 to 10 January 2019. Any other interpretation would be unreasonable and perverse as it would entitle the employee to “double dip” both overtime rates and night shift loading.
[69] In summary, the Company submits the following principles of construction are relevant to this matter:
a. the disputed provisions are to be interpreted and applied having regard to the plain language of the relevant clauses;
b. ordinary or well-understood words are to be afforded their ordinary or usual meaning;
c. the provisions in question are to be read in light of the text and operation of the 2018 Agreement as a whole, and understood in its industrial context;
d. the search is for the meaning of the document as intended by the framers of the document, including both the Applicant and the Respondent, bearing in mind the relevant industry and industrial relations environment;
e. where an ambiguity is present, regarding may be had to the evidence of the surrounding circumstances to resolve that ambiguity, however, such material may not be used to contradict the plain meaning of the 2018 Agreement;
f. headings in the 2018 Agreement ought only be considered as relevant to the interpretation of the relevant provisions where there is an ambiguity on the face of the text.
[70] The Company also submits that clause 43 of the 2018 Agreement is not expressed to, and does not, apply only to Shift Workers as defined and is capable of applying to Ms McCrae (other than sub-clauses 43.1 and 43.6). Further it submits that clause 43 provides a mechanism to require a worker to work, inter alia, night shifts on the provision of three days’ notice and a mechanism for remunerating workers, including Ms McCrae for work performed on night shifts. The clause was negotiated by the bargaining parties, including the AMWU and the Company, and was understood and intended by those parties to include provision to continue the pre-existing practice of requiring workers to work night shifts on the provision of three days’ notice.
[71] Monadelphous submits that sub-clause 40.2 of the 2018 Agreement is complete, clear and unambiguous and operates independently of sub-clause 40.1. The Company is not required to implement a new roster pursuant to the process outlined in sub-clause 40.1 before it is able to rely upon sub-clause 40.2 to move an employee onto another roster, such as the night shift roster. Monadelphous was entitled to rely upon one or both of sub-clauses 40.2 or 43.8 to require workers, including Ms McCrae, to perform night shift duties when required due to operational reasons and Monadelphous was entitled to, and did, pay Ms McCrae in accordance with sub-clause 43.5 of the 2018 Agreement for night shifts worked in the period from 6 January 2019 to 10 January 2019. Monadelphous therefore submits that the first question for arbitration should be answered in the affirmative, and the answer to the second question for arbitration is that Clause 43 of the Agreement provides the remuneration for Ms McCrae working the night shifts between 6 and 10 January 2019.
[72] In response to questions from the Commission, Ms Willoughby on behalf of Monadelphous said that when temporarily allocated to work night shifts for the period relevant to the present dispute, Ms McCrae remained on the maintenance roster. It was submitted that this roster is not a day roster only as indicated in the evidence of Mr Slack-Smith. This was submitted to establish that whether Ms McCrae was working day or night, she worked 7.6 ordinary hours with 0.84 hours accrued towards the fortnightly rostered day off and normally received 0.5 hours of overtime on a normal shift. On the night roster, Ms McCrae received 3.81 hours of overtime. According to Ms Willoughby, Ms McRae remained on the maintenance roster but was given three days’ notice of the requirement to work night shifts on that roster. Ms Willoughby agreed that the Company’s submission is to the effect that because the Maintenance Roster does not specify 8.89 ordinary hours starting at a particular time, the 8.89 hours can be moved around in any 24 hour period, provided that three days’ notice is given.
[73] In oral submissions, Ms Willoughby said that the definition of “shift worker” in the 2018 Agreement is ambiguous and that it was not ambiguous in the 2014 Agreement. The AMWU’s submission that you are either a day worker or a shift worker and that never the twain shall meet, is misconceived. The primary submission of Monadelphous is that as a matter of construction, clauses 40.2, 43.5 and 43.8, read together, do not refer to shift workers and enable the Company to provide three days’ notice to Ms McCrae (which did occur) to work an alternative roster pattern and to pay Ms McCrae in accordance with clauses 43.5 and 43.8 of the 2018 Agreement. On the face of it the terms of the 2018 Agreement are clear and this is what was done. Ms McCrae was not transferred to any roster at all, but was still on her old roster but working the rostered hours at different times.
[74] In the alternative, Ms Willoughby submitted that Ms McCrae does meet the definition of a shift worker as defined in the 2018 Agreement because she was regularly rostered to work shifts that are not the same as her usual pattern. In this regard reference was made to the evidence of Mr Hooper that Ms McCrae worked 18 night shifts in a period of eleven months and it was submitted that even if clause 43.5 applies only to shift workers this was sufficient for that clause to apply to Ms McCrae so that she was properly paid for the shifts subject of this dispute.
[75] Ms Willoughby also submitted that if it is necessary to resolve ambiguity regard ought to be had to the history of the 2018 Agreement and the negotiations. That history suggests that no change was intended to previous practices with respect to rostering short term night shifts and that an interpretation of the Agreement consistent with previous custom and practice should be preferred.
THE APPROACH TO CONSTRUCTION OF ENTERPRISE AGREEMENTS
[76] The approach to construing enterprise agreements was set out in a Decision of a Full Bench of the Commission in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd (Berri) 19 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 aid 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.
15. 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.”
CONSIDERATION
[77] The drafting of the 2018 Agreement, particularly in relation to rosters and hours of work, leaves much to be desired. After considering the text of the 2018 Agreement and applying the principles of construction set out by a Full Bench of the Commission in Berri, I have concluded that:
• The 2018 Agreement does not require that employees are engaged as either Day Workers or Shift Workers;
• Both Day Workers and Shift Workers work in accordance with rosters;
• Whether an employee is designated as a Day Worker or a Shift Worker for the purposes of payment under the Agreement depends on the roster being worked by the employee at the relevant time;
• Clause 40 of the 2018 Agreement applies to both Day Workers and Shift Workers;
• Clause 40.1 allows the Company to introduce any number or type of new roster for permanent employees;
• Depending on the parameters of the roster employees working in accordance with it may while so working be designated as day workers or shift workers;
• Where a roster is contained within the Agreement – either in Schedule 2 or is introduced by the Company pursuant to clause 40.1 – both Day Workers and Shift Workers can be moved from one roster to another roster provided that both rosters are contained within the Agreement – either by being included in Schedule 2 or introduced by the Company with one months’ notice;
• Where less than three days’ notice of an employee being required to move from one roster to another roster is given, the first shift in the roster to which the employee is moved is required to be paid for at overtime rates; and
• If the roster provides for night shifts (as defined) or operates in a way that employees are working as continuous shift workers (as defined) then employees working such rosters are shift workers for the relevant period and are paid accordingly.
[78] My reasons for reaching these conclusions are as follows. The starting point is the text of the disputed terms. Clause 40 concerns the subject of “Roster Change”. It is not immediately apparent from the plain words of the clause that it is limited to day workers. That the provision is not so limited is confirmed by the definition of “Roster” in clause 8 of the 2018 Agreement as “the work cycle arrangement that is in place” and by the similarly broad definitions of “Rostered Working Days” and “Rostered Work Hours” also found in clause 8. It is also notable that the definition of the term “Rostered Work Hours” makes it clear that such hours may include ordinary time and overtime. Clearly the concepts of rostered hours or rosters are not limited to Shift Workers.
[79] It is also the case that clause 43.8 of the 2018 Agreement covers a different kind of roster change than the change contemplated by clause 40.1. The roster change contemplated by clause 43.8 is required to change or modify their shift roster rather than move from one roster to another roster.
[80] Clause 8 of the 2018 Agreement defines both “Day Worker” and “Shift Worker”. The definition of Day Worker in clause 8 of the 2018 Agreement is grounded in the arrangement of the employee’s ordinary working hours. By virtue of that definition, an employee whose majority of ordinary hours are performed between the hours of 6.00 am and 6.00 pm Monday to Friday inclusive is a Day Worker. Clause 37 of the 2018 Agreement also makes clear that Day Workers work in accordance with a Roster which operates over a Roster Cycle (clause 37.1). By virtue of clause 37.2 an average of 38 hours may be worked over the period of the employee’s roster provided that the period of the roster is no more than four weeks. The definition of a “Shift Worker” is also grounded by the hours worked. While the wording of the clause is poor, it is clear that a Shift Worker is a person who works on a shift “that is regularly rostered to work on weekends and public holidays” and that in some circumstances to work on shifts continuously rostered 24 hours a day, 7 days a week. It is significant that, unlike the definition of Day Worker, the Shift Worker definition refers to both the roster and the person working as evidenced by the use of the term “that” rather than the term “whose” to connect the person working the roster with the roster itself.
[81] Schedule 2 sets out “indicative rosters”. Employees working the roster entitled “Shift (Day Only) Roster” are arguably not Day Workers as defined in clause 8. That definition requires employees to work the majority of their ordinary hours between the hours of 6.00 am and 6.00 pm and to work those hours on Monday to Friday inclusive. Depending on the manner in which employees are allocated to work the Shift (Day Only) Roster they may not work in accordance with these parameters. The Shift (Day Only) Roster sets out a pattern of work whereby the number of consecutive days that are to be worked and the number of days off are stipulated. A “day” for the purpose of that Roster is a 12 hour shift. The Shift (Day Only) Roster does not stipulate the day of the week on which the roster cycle commences and could commence on any day of the week nominated by Monadelphous.
[82] It appears that employees working this roster may also be required to work on public holidays. Further, the Shift (Day Only) Roster appears to have a cycle of eight weeks, which is outside the parameters set by the hours of work provision for Day Workers in clause 37.2 which as previously noted stipulates a maximum roster cycle of four weeks. While the starting and finishing times of shifts in the Shift (Day Only) Roster are not stipulated, it is implicit that the hours are worked during the day and not at night. Where rosters provide for Day and Night shifts in an alternating pattern, this is clearly indicated as can be seen from the Continuous Day/Night Rosters also set out in Schedule 2 of the 2018 Agreement.
[83] When the Shift (Day Only) Roster is considered in the context of the two Continuous Shift (Day/Night) Rosters which also appear in Schedule 2, the only apparent restriction on the starting and finishing times of shifts in the Shift (Day Only) Roster is that the shifts could not start and finish at times that would bring them within the definition of “Night Shift” in clause 8 of the 2018 Agreement.
[84] Further, the definition of Shift Worker in clause 8 of the 2018 Agreement defines such employees as those who are regularly rostered to work on weekends and public holidays “in some circumstances where shifts are continuously rostered 24 hours a day seven days a week”. This means that employees regularly rostered to work weekends and public holidays are within the definition of “Shift Worker” notwithstanding that the shifts on which they are working are not rostered 24 hours a day seven days a week. Accordingly, employees working the Shift (Day Only) Roster are in my view, within the definition of “Shift Worker” in clause 8. This is also the case with employees working on the two Continuous Shift (Day/Night) Rosters in Schedule 1.
[85] Unlike the Shift (Day Only) Roster, the Maintenance Roster operates over a two week cycle, which is within the allowable parameters for averaging hours for Day Workers in accordance with clause 37.2 of the 2018 Agreement. The Maintenance Roster also sets out the days of the week on which the pattern of shifts are required to be worked. Those days do not include weekends. The hours that can be rostered on any day are 8.89 hours. The notes relating to the Maintenance Roster indicate that the 8.89 hours consist of 7.6 ordinary hours and 0.84 hours that are accrued for a rostered day off. There is no stipulation as to the times at which shifts are to commence or finish.
[86] The Notes for the Maintenance Roster also indicate that “Day Workers” – who are by definition employees other than Shift Workers – are not rostered to work ordinary hours on public holidays. The last point of the notes to the Maintenance Roster states that employees “required to work on a public holiday that falls on an RDO” shall be paid public holiday rates in addition to their accrued RDO. Public holiday rates provided for in clause 26 of the 2018 Agreement are for “all ordinary hours worked on a public holiday”. It therefore appears that the Notes to the Maintenance Roster contemplate that Monadelphous can roster employees on the Maintenance Roster to work ordinary hours on public holidays.
[87] The notes to the Maintenance Roster make reference to the term “day”. The second point in those notes states that: “A day in the Maintenance Roster is 8.44 Ord Hrs + .45 hours Overtime which equals 8.89 hrs worked per day.” In my view, the term “day” as it is used in the Maintenance Roster Notes means a 24 hour period from midnight to midnight rather than the hours between 6.00 am and 6.00 pm. Where Rosters in Schedule 1 differentiate between day and night shift, the terms are represented as “D” or “Day” and “N” or “Night”. The Maintenance Roster (and the Warehouse Roster) simply set out the hours that can be rostered on the stipulated days of the week – Monday to Friday and the proportion of those hours that are required to be allocated to ordinary time, overtime and the accrual of rostered days off.
[88] It is arguable that the Maintenance Roster does not require that the shifts of 8.89 hours duration are rostered so that the majority of hours on those shifts are worked between 6.00 am and 6.00 pm and that the terms of the 2018 Agreement allow Monadelphous to change the starting and finishing times of shifts on the Maintenance Roster. It is also arguable that when such a change is made, provided that specified parameters with respect to the length of the shift (including ordinary time and overtime) and the days of the week on which shifts are worked are not changed, the roster will not be a “new roster” for the purposes of clause 40.1 of the 2018 Agreement. However, it is also arguable that such a change would result in a new roster on the basis that the Maintenance and Warehouse Rosters are not designated as “Shift” rosters in contrast with the Shift (Day Only) Roster and the two Continuous Shift (Day/Night) Roster all of which have the term “Shift” in their title. For reasons which will be apparent, it is not necessary to determine this point.
[89] The terms of the 2018 Agreement distinguish between Day Workers and Shift Workers. There are separate provisions for Day Workers and Shift Workers in relation to hours of work, overtime, meal breaks and penalty payments. The designation of an employee as a Day Worker or a Shift Worker is of significance for the entitlements of that employee under the 2018 Agreement. Shift Workers are entitled to be paid all overtime at the rate of double time while overtime for day workers is paid for at the rate of time and a-half for the first two hours and double time thereafter. Shift Workers are entitled to paid meal breaks and rest pauses while meal breaks and rest pauses for Day Workers are unpaid.
[90] The ordinary hours for day workers are specified in clause 37 of the Agreement. Those hours are required to average 38 per week over a four week cycle. Relevantly the spread between which ordinary hours may be worked by Day Workers is 6.00 am to 6.00 pm with an ability to alter the spread by one hour either way. Hours worked outside that spread are to be paid for at overtime rates. The fact that clause 37.6 provides for flexibility in the way that ordinary hours are organised, does not extend to altering the definition of ordinary hours. This is clear from clause 37.8 which provides that Monadelphous may implement any form of ordinary time rosters with overtime to be determined within those rosters with indicative rosters being set out in Schedule 2. As previously noted, Schedule 2 includes the Maintenance Roster and the Warehouse Roster which provide for patterns of work which equate to the weekly spread of ordinary hours for day workers – Monday to Friday. The ordinary hours for shift workers are set out in clause 43. That clause provides for an average of 38 hours per week over a 26 week cycle. Clause 43 also provides that employees may be required to change or modify their shift roster with three days’ notice. Further, there is nothing in the terms of the Agreement to indicate that the general definition of Night Shift can over-ride the definition of overtime in the provisions of the Agreement dealing with Day Worker ordinary hours.
[91] I do not accept that the headings of clauses should be disregarded in the construction of the terms of an enterprise agreement. As the Full Bench in Berri noted, enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies although modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. However the Full Bench in Berri went on to observe that: 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. In the context of an enterprise agreement which distinguishes between day work and shift work and contains separate definitions and provisions for employees working on that basis, it would be overly technical to disregard headings of clauses which emphasise the distinction.
[92] Given the distinction between Day Workers and Shift Workers, I do not accept that the Agreement allows the provisions of clause 43 of the 2018 Agreement to be used to change the rosters and working hours of persons who are Day Workers at the point the change is notified. However, as I have previously noted, the 2018 Agreement does not require that employees are engaged by Monadelphous specifically as Day Workers or Shift Workers. The 2018 Agreement provides for employees to be engaged on a permanent full-time, part-time, casual or fixed term/task basis. This means that the designation of an employee as either a Day Worker or a Shift Worker may change where the employee is moved from one roster to another roster in accordance with the provisions of the Agreement allowing for such movement.
[93] In my view the provisions of the Agreement dealing generally with roster changes are found in clause 40 of the 2018 Agreement. That clause applies to all roster changes whether for Day Workers or Shift Workers. Sub-clause 1 deals with new rosters which are defined as rosters not contained within the Agreement. The only part of the Agreement that contains rosters is Schedule 2 and accordingly clause 40.1 deals with the establishment of rosters that are not included in Schedule 2. Monadelphous has the right to introduce a new roster with four weeks’ notice and there does not appear to be any limitation on the type of roster that can be introduced.
[94] Clause 40.2 concerns the movement of employees “from one roster to another roster” and provides for at least three days’ notice to be given to the employee concerned. The plain meaning of the words “from one roster to another roster” is that the relevant rosters are different. What constitutes a different roster may be a question of fact and degree. It was put to witnesses for Monadelphous in cross-examination that they had not introduced a short term shut down roster involving the working of night shifts in the manner provided for in clause 40.1. Notwithstanding that the Company has not taken this step, it would be open for the Company to do so and to move any employee – whether a Day Worker or a Shift Worker – to that roster with three days’ notice. Whether such a change would result in the designation of an employee from Day Worker to Shift Worker would also depend on the nature of the roster and the manner in which it operated and/or required the employee to work.
[95] In the present case Monadelphous contends that the roster worked by Ms McCrae for the period 6 to 10 January 2019 was not a new roster. Rather Ms McCrae remained on the Maintenance Roster albeit that starting times of the shifts on that roster were changed. If this is correct – and I do not accept that it is – on the Company’s own case, the change to Ms McCrae’s working hours was not a movement from one roster to another as provided in clause 40.2. Accordingly that clause could not have applied to the change. Further, Monadelphous could not utilise the provisions of clause 43.8 because that clause applies to Shift Workers and at the time of the change, Ms McCrae was a Day Worker.
[96] In any event I do not accept that the night shift arrangement worked by Ms McCrae for the period from 6 to 10 January 2019 was the maintenance roster nor that it was not a new roster. The Maintenance Roster provides for shifts of a defined length – 8.89 hours – and sets out the ordinary and overtime hours in those shifts. The roster implemented by Monadelphous for the period 6 to 10 January 2019 was not the Maintenance Roster with a change in the starting and finishing time of shifts. The rostered work hours during the night shift arrangement – which by definition can include overtime hours – were 12.25 hours and exceeded the hours of shifts stipulated in the Maintenance Roster. Further, the night shift arrangement included a Sunday shift and the Maintenance Roster operates from Monday to Friday. I am of the view that the night shift arrangement implemented between 6 and 10 January 2019 was a new roster and could only have been implemented in accordance with clause 40.1 of the 2019 Agreement. This did not occur.
[97] At the time the night shift arrangement was implemented, Ms McCrae was a Day Worker and the change required her to work outside the spread of hours for day workers which by virtue of clause 37.5 of the 2019 Agreement entitled her to be paid at overtime rates. Even if Mondadelphous was permitted to change the hours of the shifts in the maintenance roster so that 8.89 hour shifts were worked at times that fell within the hours for night shift, and to pay night shift rates in lieu of overtime payments, that is not what the Company did. Instead the Company implemented a new roster with 12.25 hour shifts. Accordingly I do not accept that as a matter of construction, the plain words of clauses 40.2, 43.5 and 43.8, read together, enabled Monadelphous to provide three days’ notice to Ms McCrae to work the roster that was implemented between 6 and 10 January 2019.
[98] I do not accept that there is any ambiguity in the definition of “Shift Worker” in clause 8 of the 2018 Agreement. The inclusion of the words “in some circumstances” in the definition simply make clear that it is sufficient for an employee to be within the definition if the employee is regularly rostered to work weekends and public holidays and that employees who are also required to work shifts rostered continuously over 24 hours a day seven days a week will be continuous shift workers, although this additional requirement is not necessary for the definition to be met.
[99] Notwithstanding my view that there is no ambiguity in the relevant terms of the Agreement, it is permissible to have regard to evidence of surrounding circumstances to assist in determining whether an ambiguity exists. In the present case, there is evidence of the negotiations for the 2018 Agreement. I do not accept that this evidence establishes a common understanding. While Mr Golby may have accepted that the Company could require day workers to temporarily work night shifts, he did not accept that those employees could be paid at shift work rates for such work. Mr Golby’s evidence establishes that he had maintained this view during the operation of the 2014 Agreement. The draft document prepared by Mr Golby does not establish that he had altered his view in this regard and neither do the meeting notes. In any event, those notes are not common notes but were prepared by Company representatives and not provided to the Union parties.
[100] It is clear that in the negotiations for the 2018 Agreement, Mr Golby attempted to insert provisions into the various drafts to prevent the Company from introducing ad hoc night shifts for Day Workers and paying for those shifts at shift work rates rather than overtime. The Company was on notice of Mr Golby’s intention in this regard. The fact that Mr Golby stated in notes explaining his draft that there were provisions to introduce such shifts in the shift work provision, does not of itself establish his acceptance that those provisions could be applied to Day Workers.
[101] There are also a number of objective facts that are contrary to the case advanced by Monadelphous. Firstly the definition of Shift Worker in clause 8 of the Agreement was mandatory by virtue of s. 196 of the Act. Infelicities in the drafting of the term may be the result of the requirement to include a term for the purpose of the additional week of annual leave for shift workers provided for in the National Employment Standards. Secondly, the fact that Ms McCrae had worked other night shifts before the disputed shifts does not constitute acquiescence in the practice adopted by Monadelphous with respect to the rostering of those shifts. That practice was allowed under the 2014 Agreement. Further, in all cases other than the night shifts subject of the present dispute, the shifts did not continue for five nights so were paid at overtime rates in any event.
[102] Thirdly, there were significant changes in the 2018 Agreement when compared to its predecessor, the 2014 Agreement. The 2014 Agreement provided in Part B for employees to be engaged on Set Rosters. The Set Rosters were listed in Part B and set out in Schedule 2. But for the additional option for the Continuous Day/Night Roster, they are the same rosters as now found in Schedule 2 of the 2018 Agreement. Clause 5 of Part B of the 2014 Agreement provided as follows:
“5 Roster Change
5.1 Where it is necessary for Monadelphous to introduce a new roster not contained within this Agreement, the new roster will not be implemented with less than 4 weeks' notice, unless agreed by Monadelphous and the majority of affected employees.
5.2 Where it is necessary to move an Employee from one Set Roster to another Set Roster, the Employee will be given at least 3 days' notice. Where less than 3 days' notice is given, the first shift will be paid at overtime rates as set out in Part B Clause 6.1.
5.3 An Employee who moves from one Set Roster to another Set Roster shall be paid their salary pro-rata for any portion of a week which is not completed due to the change in roster.
5.4 Where it is necessary to alter an Employee's shift panel, the Employee will be given at least 24 hours' notice. Where less than 24 hours' notice is given, the first shift will be paid at overtime rates as set out in clause Part B Clause.6.1.
5.5 Due to operational requirements it may be necessary from time to time for an Employee to work 12 hour shifts and/or nightshift for short periods of time, for example a shutdown, and then return to their Set Roster once the work has been completed. In these circumstances, the following will apply:
5.5.1 The Employee will be given at least 3 days' notice. Where less than 3 days' notice is given, the first shift will be paid at overtime rates as set out in Part 8 clause 6.1;
5.5.2 On any day in which an Employee works hours outside of the Employee's Set Roster as prescribed in the applicable Schedule, the Employee will be paid for those hours outside of the Employee's Set Roster as per Part 8 clause 6.1 such that in any week in which an Employee works an altered roster in line with clause 5.5, the Employee shall not receive less than their weekly pro-rata Annual Salary that would have been earned under their Set Roster for that week.
5.5.3 For the avoidance of doubt, an employee that has their Set Roster changed under clause 5.5 such that they no longer work the hours as set out in that roster shall receive payment for the hours actually worked calculated in accordance with Part C in lieu of payment under their Set Roster such that the Employee shall not receive less than their weekly pro-rata Annual Salary that would have been earned under their Set Roster for that week.”
[103] It will be immediately noted that this clause did allow for an ad hoc roster change on a short term basis and for rosters that did not align with any of the set rosters to be worked for a limited period for the purposes of a shut down or similar and for the employee to revert to the set roster at the end of the limited period. That provision operated with respect to Day Workers and Shift Workers. Its absence from the 2018 Agreement is in my view significant. If Monadelphous intended to maintain the ability to implement short term shift work in this way, then its negotiators could have insisted on maintaining the existing provision albeit in a modified form to allow for the removal of the Part B and C provisions from the 2018 Agreement. The parts of clause 5 which found their way into the 2018 Agreement were inserted in a clause which dealt with Shift Work and had an added reference “(Shift Worker)” and into clause 40 of the 2018 Agreement. The 2014 Agreement had a clause in Part B entitled “Ordinary Hours of Work – Day Worker” (clause 2) and a clause entitled “Shift Work”.
[104] In the 2018 Agreement the clauses are respectively entitled “Ordinary Hours of Work – Day Worker” (cause 37) and “Shift Working (Shift Worker)” (clause 43). The addition of the term “(Shift Worker)” to the heading of clause 43 was apparently at the insistence of Mr Golby. The Company accepted this change and was the author of the final version which did not contain clause 5.5. This is not a case where a party to an enterprise agreement is departing from a long established provision that is in a current agreement and has appeared in previous iterations. Rather, the clause that would have allowed Monadelphous to implement the arrangement it put in place for the period 6 to 10 January 2019, did not make its way into the current version of the Agreement. There is no basis to imply this provision into the 2018 Agreement.
[105] While this may not have been the outcome sought by the Company it is the outcome that is apparent in the 2018 Agreement and whether by poor drafting or inadvertence, the terms of the 2018 Agreement do not permit the payment of Ms McCrae at shift work rates for the night shifts subject of the dispute.
CONCLUSION
[106] Accordingly, I answer the questions for determination as follows:
Question
1. Can an employee be given notice under clause 40 of the Agreement to change roster?
Answer
Yes, provided that the roster is a new roster not contained within the Agreement and four weeks’ notice is given or the change is necessary to move the employee from one roster within the Agreement to another roster within the Agreement and three days’ notice is given.
Question
2. Which clauses of the Agreement provide the remuneration rate for Ms. McCrae working the night shifts between 6 January 2019 and 10 January 2019?
a. Is it clause 37 and 39; or
b. Is it clause 43 of the Agreement?
Answer
Clauses 37 and 39 provide the remuneration rate for Ms McCrae working the night shifts between 6 January 2019 and 10 January 2019.
DEPUTY PRESIDENT
Appearances:
Mr J Blundell-Thornton for the AMWU.
Ms P Willoughby of Norton Rose Fulbright for Monadelphous.
Hearing details:
Brisbane.
26 June.
2019.
Printed by authority of the Commonwealth Government Printer
<PR714440>
1 Exhibit A1 Statement of Phil Andrew Golby dated 10 April 2019; Exhibit A2 Statement in reply of Phil Andrew Golby.
2 Exhibit R1 Statement of Bradley Hooper dated 7 May 2019.
3 Exhibit R1 Statement of David Rae William Slack-Smith dated 8 May 2019.
4 Transcript PN72.
5 Transcript PN72-75.
6 AMWU Outline of Submissions filed 10 April 2019 at [21].
7 [2017] FWCFB 3005.
8 Exhibit A1 [8] – [10].
9 (2006) 151 FCR 513 at [26]
10 Exhibit R1 Annexure “BH-3’.
11 Exhibit R1 Annexure “BH-8”.
12 Exhibit R1 Annexure “BH-15”.
13 Monadelphous Outline of Submissions filed 21 May 2019 at [25].
14 Codelfa Construction Pty Ltd v State Rail Authorities of New South Wales (1982) 149 CLR 337 at 352
15 Monadelphous Outline of Submissions filed 21 May 2019 at [47].
16 Shop Distributive and Allied Employees’ Association v Woolworths Limited (2006) 151 FCR 513, cited in Australian Nursing and Midwifery Federation v Eastern Health [2013] FCAFC 137.
17 Monadelphous Outline of Submissions filed 21 May 2019 at [49].
18 Ibid at [55].
19 [2017] FWCFB 3005.
0
4
0