“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Fonterra Australia Pty Ltd
[2021] FWC 6393
•29 NOVEMBER 2021
| [2021] FWC 6393 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Fonterra Australia Pty Ltd
(C2021/2918)
DEPUTY PRESIDENT BARCLAY | HOBART, 29 NOVEMBER 2021 |
Application relating to payment for public holidays not worked – construction of Fonterra-Spreyton and Wynyard Site (Maintenance) Enterprise Agreement – aggregated rate of pay – whether aggregated rate of pay includes payments in relation to entitlement to public holidays
[1] This is an application concerning whether or not certain permanent maintenance fitters (fitters) at the Respondents Wynyard site are entitled to be paid for public holidays not worked. TheApplicant submits that on a proper construction of the relevant clauses of the Fonterra–Spreyton and Wynyard Site (Maintenance) Enterprise Agreement 2019 (the Agreement) and having regard to the relevant provisions of the National Employment Standards (the NES) the maintenance fitters are entitled to be paid for public holidays not worked in addition to the aggregated rate of pay they already receive.
[2] The Respondents position is that as a result of the fitters being paid the aggregated rate of pay which includes compensation for statutory public holiday entitlements the fitters are not entitled to be paid any extra for public holidays not worked.
[3] The Applicant submits that the question I am to answer is:
“Are permanent maintenance workers who are rostered to work on a day which is a public holiday, and reasonably refuse a request to work the public holiday entitled to be paid their aggregate rate of pay under the Agreement and the National Employment Standards?” 1
[4] The Respondent in its written submissions engages with the question and submits the answer is no.
[5] The parties have agreed that the application be determine on the papers.
[6] The origins of the dispute appear to be that for some time those fitters who wanted to take the public holiday off work were able to do so without having to use up any leave entitlements. However in more recent times (although I do not know when) it seems the Respondent required any fitter who did not want to work the public holiday to take a day’s leave. The change being that where previously the fitter could have the public holiday and not use up any leave entitlements, the fitter is now obliged to use a day’s paid leave. If they did not access a day’s leave they would not be paid. 2 I apprehend that what is meant by not being paid is that the requirement to take a day’s paid leave (thereby reducing the amount of paid leave to which the fitter is entitled) cancels out the fact that the fitter has already been paid for the day’s leave by the aggregated rate of pay which the Respondent submits takes account of public holidays.
[7] At the heart of the matter is the construction of the Agreement and the interplay between the Agreement and the NES. The Manufacturing and Associated Industries and Occupations Award is also relevant.
[8] The relevant clauses of the Agreement are:
“12. WAGE RATES
12.1 Employees who work in accordance with one of the following roster arrangements shall be paid the rates and increases as specified in their relevant table set out below. The rates in the tables set out below reflect and include an increase of 2.75% per annum.
12.2 These rates are inclusive of Tool Allowance and Special Rates as contained in Part 4 of the Award. The following rates of pay shall apply as if in place from the first full pay period after 1July 2019.
(a) Day Work Trades Mechanical & Trades Electrical Rates of Pay.
Employees classified under this wage rate table will be entitled to accrue RDOs.
| Base day Rate per | RATE PRE 1 | 1 July 2019 @ 2.75% | 1 July 2020 @2.75% | 1 July 2021 @2.75% |
C10 | $37.03 | $38.05 | $39.09 | $40.17 |
C9 | $39.32 | $40.40 | $41.51 | $42.65 |
cs | $39.93 | $41.03 | $42.16 | $43.32 |
C7 | $41.18 | $42.31 | $43.48 | $44.67 |
(b) Shift Electrician base day rate.
The base rates in this table applies only to shift electricians who are paid the shift uplift provided for in table 12.3(a).
1 July | ||||
Base day Rate per | Rate Pre 1 | 1 July 2019 | 2020@ | 1 July 2021 |
hour | July2019 | @ 2.75% | 2.75% | @ 2.75% |
ClO | $37.54 | $38.57 | $39.63 | $40.72 |
C9 | $39.85 | $40.95 | $42.07 | $43.23 |
C8 | $40.46 | $41.57 | $42.72 | $43.89 |
C7 | $41.74 | $42.89 | $44.07 | $45.28 |
(c) Trades employees assigned and rostered to work on the 38 hour plus 2 hours overtime week roster (Rostered Day Off included in the rate). These rates are calculated by adding 38 ordinary hours, plus 2 hours overtime at double time divided by 40 hours.
| Rate per hour | Rate Pre 1 July 2019 | 1 July 2019 @2.75% | 1 July 2020 @2.75% | 1 July 2021 @2.75% |
ClO | $38.89 | $39.96 | $41.06 | $42.19 |
C9 | $41.24 | $42.37 | $43.54 | $44.74 |
C8 | $41.91 | $43.06 | $44.25 | $45.46 |
C7 | $43.24 | $44.43 | $45.65 | $46.91 |
(d) Day Work Service Boiler Operator Rates at Spreyton
Base Rate per hour | Rate Pre 1 | 1 July 2019 @ 2.75% | 1 July 2020 @ 2.75% | 1 July 2021 @ 2.75% |
C14 | $27.35 | $28.10 | $28.87 | $29.67 |
C13 | $28.83 | $29.62 | $30.44 | $31.27 |
C12 | $30.31 | $31.14 | $32.00 | $32.88 |
12.3 Employees who work in accordance with one of the following 12 hour shift roster arrangements shall be paid the rates and increases as specified in their relevant table set out below. These rates are inclusive ofTool Allowance and Special Rates as contained in Part 4 of the Award.
(a) Electricians working at Spreyton & Wynyard on the 8 week roster cycle of 12 hour shifts-4 on 4 off (Average 42 hours per week)
Rate Pre | 1 July | |||
1 July | 1 July 2019 | 2020 @ | 1 July 2021 | |
Rate per hour | 2019 | @ 2.75% | 2.75% | @ 2.75% |
ClO | $52.99 | $54.45 | $55.94 | $57.48 |
C9 | $56.25 | $57.80 | $59.39 | $61.02 |
C8 | $57.11 | $58.68 | $60.29 | $61.95 |
C7 | $58.93 | $60.55 | $62.22 | $63.93 |
Refer to Appendix A for wages rate calculator relating to Table 12.3{a) above.
Service Boiler Operators at Spreyton working on the 12 hour rotating shift of 4 on -4 off (Average 42 Hour Continuous Rotating Shift Roster)
1July | ||||
Rate Pre 1 | 1July 2019 | 2020@ | 1 July 2021 | |
Rate per hour | July 2019 | @2.75% | 2.75% | @2.75% |
C14 | $38.60 | $39.66 | $40.75 | $41.87 |
C13 | $40.67 | $41.79 | $42.94 | $44.12 |
C12 | $42.76 | $43.94 | $45.14 | $46.39 |
(b) Trades (Monday-Friday Rotating Shift Work)
1 July | ||||
Rate Pre 1 | 1 July 2019 | 2020 @ | 1 July 2021 | |
Rate per hour | July 2019 | @ 2.75% | 2.75% | @2.75% |
C10 | $46.20 | $47.47 | $48.78 | $50.12 |
C9 | $49.04 | $50.39 | $51.77 | $53.20 |
C8 | $49.82 | $51.19 | $52.60 | $54.04 |
C7 | $51.37 | $52.78 | $54.23 | $55.73 |
12.4 The aggregated rates contained in the above tables are inclusive of all hours worked and allowances on the rotating shift roster which may include weekend, shifts, overtime and statutory public holiday entitlement based on the various shift arrangements at both sites.
…
30. PUBLIC HOLIDAYS
30.1 Employees, other than a casual employee, shall be entitled to the following paid public holidays as gazetted. Such employees shall be paid their ordinary rate of pay.
New Year’s day
Australia Day
Labour Day
Good Friday
Anzac Day
Easter MondayQueen’s Birthday (Sovereign’s Birthday) Christmas Day
Boxing Day
Recreation Day (1st Monday in November)
Burnie Show Day (Wynyard site only) Friday proceeding the 1st Saturday in October) Devonport Show Day (Spreyton site only) last Friday in November no later than 1st day of December)
30.2 Working on a Public Holiday
(a) Work performed on a public holiday shall be paid at a minimum of four hours at 2 times the ordinary day work rate of pay plus eight (8) hours at ordinary time for the public holiday, except in the case of a casual who shall be paid double time a half for each hour worked on the public holiday.
(b) A continuous shift worker working on a non-rostered shift is to be paid double time at the day rate for working overtime on a public holiday.
30.3 Working on December 25, January 1 and Good Friday
An employee working on December 25, January 1 and on the Good Friday shall be paid at a minimum of four hours at 3 times the ordinary day work rate of pay plus eight (8) hours at ordinary time for the public holiday, except in the case of a casual who shall be paid double time a half for each hour worked on the relevant day.”
[9] The Respondent also notes the importance of rostering arrangements to the business, 3 that where there is any inconsistency between the Agreement and the NES the more beneficial term is to prevail to the extent of any inconsistency,4 and that there is a no extra claims clause5. I should say at this stage that I do not regard this claim as an extra claim which is prevented by the no extra claims clause. The Applicant is relying on a statutory entitlement in the NES. If the Applicant is correct then the payment for the public holiday not worked will be because of the requirements of the NES minimum standards and not because of any additional claim made and otherwise covered by the Agreement.
[10] The relevant legislative provisions are sections 114 and 116 of the Fair Work Act 2009 (the Act) which provide as follows:
“114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.
(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
(4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable,the following must be taken into account:
(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
(b) the employee’s personal circumstances, including family responsibilities;
(c) whether the employee could reasonably expect that the employer might request work on the public holiday;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
(e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
(f) the amount of notice in advance of the public holiday given by the employer when making the request;
(g) in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;
(h) any other relevant matter.
…
116 Payment for absence on public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay forthe employee’s ordinary hours of work on the day or part-day.
Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.”
[11] The approach to construction of industrial instruments is now well settled. Both parties rely on the well-known passage from AMWU v Berri Pty Limited 6 at paragraph 114 which is in the following terms:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
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.”
The Parties Contentions
[12] The Applicant contends that the fact the fitters are paid an aggregated rate of pay means they are not entitled to be absent from work on a public holiday and to be paid their ordinary hours on that day. The Applicant submits that that arrangement excludes the entitlement in s 116 of the Act to be paid for a public holiday not worked. As the entitlement to a paid holiday is contained in the NES and is more beneficial than the Agreement the Applicant submits the NES entitlement prevails 7.
[13] In its Submissions in Reply 8 the Applicant amplifies the submission noting that the Respondents argument that the fitters are already compensated for the public holiday by the aggregated rate of pay ignores the entitlement in s 116 of the Act to be paid for the day off on annual leave. Further the Applicant submits that while monetary entitlements (for example penalty rates) may be dealt with by annualised salary, non-monetary entitlements are not so easily dealt with. The Applicant points out that the entitlement provided by s 114 is to be absent from work on a public holiday. Section 116 provides for the entitlement to be paid notwithstanding the absence from work. The alternative method of paying for the public holiday by the aggregated rate, it is submitted does not satisfy the obligation under s 114 of the Act.
[14] Additionally, the Applicant submits that the aggregation of the entitlement to a paid public holiday and the requirement under the system of rostering adopted by the Respondent fails to comply with s 114 of the Act. That is, the arrangement is that fitters rostered to work public holidays are required to work without exception which does not comply with s 114 of the Act.
[15] The Respondent submits it is clear that the rate of pay under the annualised system is far greater than the award rate with shift allowances added. In summary the Respondent submits that the annualised rate is 183% of the award rate for the fitters.
[16] The Respondent relies on the Annualised Wage Arrangements decision 9. That case considered s 139 of the Act. It held that under a contract of employment an employer and an employee could agree that the salary payable under the contact has the purpose of satisfying the employers’ obligation to pay identified award entitlements. Examples given were base wages, overtime rates, shift and weekend penalty rates, allowances and annual leave loading10.
[17] The Respondent submits that it is clear that the agreement provides that the aggregated rates are inclusive of statutory public holiday entitlements. 11 As a result the Respondent submits that the fitters are receiving a financial benefit in the aggregated rate of pay for public holidays when rostered to work a public holiday. The Respondent goes on the submits that:12
“Where fitters are rostered to work on a public holiday, they are expected to work such. If they are absent for some reason as per a refusal to work in accordance with s.114(3) they will still receive their aggregate rate of pay for the period of such absence. There is no ‘self- funding’. The same if the fitter wishes to take annual leave on a day which they are rostered to work. In the alternative should the fitter work the rostered public holiday they receive the penalty payments under the Agreement for the time worked.”
[18] In summing up its position the Respondent says this 13:
“Given the construction of the aggregated rate of pay and its cooperation and convergence with the rotating roster which includes public holiday shifts, it is clear that an employee working these arrangements is expected and required to work a rostered public holiday shift, unless either granted leave by their employer or they have a basis from which to refuse to work, in which case they will be absent and receive their aggregate rate only, not both a ‘base rate’ and the aggregate rate.”
Consideration
[19] It is clear, applying the principles in Berri that the Agreement provides that the entitlement to public holidays is included in the aggregated rate of pay. However, the fact that the agreement says that does not make it so. What must be considered is the nature of the benefit which is said to have been aggregated into the aggregated rate of pay and whether that benefit is capable of being aggregated into an aggregated rate of pay. Section 139 of the Act, when dealing with annualised wage arrangements, provides that an award may contain terms about annualised wage arrangements. It provides:
“(f) annualised wage arrangements that:
(i) have regard to the patterns of work in an occupation, industry or enterprise; and
(ii) provide an alternative to the separate payment of wages and other monetary entitlements; and
(iii) include appropriate safeguards to ensure that individual employees are not disadvantaged;”
[20] The relevant award14 provides for annualised wages.15 That clause provides as follows:
“28.2 Annualised wage instead of award provisions
(a) An employer and a full-time employee may enter into a written agreement for the employee to be paid an annualised wage in satisfaction, subject to clause 28.2(c), of any or all of the following provisions of the award:
(i) Clause 17.2(f)—Penalty rate for ordinary hours worked outside spread of hours—day workers;
(ii) Clause 17.2(g)—Weekend penalty rates for ordinary hours—day workers;
(iii) Clause 17.2(h)—Public holiday penalty rates for ordinary hours—day workers;
(iv) clause 18.5(b)—Penalty rate for work done during meal breaks;
(v) clause 19.4—Ship trial penalty rates;
(vi) clause 20—Minimum rates;
(vii) clause 30—Allowances and special rates;
(viii) clause 27—Payment of wages;
(ix) clause 33.1—Penalty rates for day workers;
(x) clause 33.2(g)—Methods of arranging ordinary working hours – work on a shift other than a rostered shift;
(xi) clause 33.2—Special provisions for shiftworkers;
(xii) clause 32—Overtime;
(xiii) clause 34.4—Annual leave loading;
(xiv) clause 53—Allowances and related matters—vehicle manufacturing employees;
(xv) clause 55—Shiftwork and rates—vehicle manufacturing employees; and
(xvi) clause 56—Overtime—vehicle manufacturing employees.
(b) Where a written agreement for an annualised wage agreement is entered into, the agreement must specify:
(i) the annualised wage that is payable;
(ii) which of the provisions of this award will be satisfied by payment of the annualised wage;
(iii) the method by which the annualised wage has been calculated, including specification of each separate component of the annualised wage and any overtime or penalty assumptions used in the calculation;
(iv) the outer limit number of ordinary hours which would attract the payment of a penalty rate under the award and the outer limit number of overtime hours which the employee may be required to work in a pay period or roster cycle without being entitled to an amount in excess of the annualised wage in accordance with clause 28.2(c).
(c) If in a pay period or roster cycle an employee works any hours in excess of either of the outer limit amounts specified in the agreement pursuant to clause 28.2(b)(iv), such hours will not be covered by the annualised wage and must separately be paid for in accordance with the applicable provisions of this award.
(d) The employer must give the employee a copy of the agreement and keep the agreement as a time and wages record.
(e) The agreement may be terminated:
(i) by the employer or the employee giving 12 months’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or
(ii) at any time, by written agreement between the employer and the individual employee.
28.3 Annualised wage not to disadvantage employees
(a) The annualised wage must be no less than the amount the employee would have received under this award for the work performed over the year for which the wage is paid (or if the employment ceases or the agreement terminates earlier, over such lesser period as has been worked).
(b) The employer must each 12 months from the commencement of the annualised wage arrangement or, within any 12-month period upon the termination of employment of the employee or termination of the agreement, calculate the amount of remuneration that would have been payable to the employee under the provisions of this award over the relevant period and compare it to the amount of the annualised wage actually paid to the employee. Where the latter amount is less than the former amount, the employer shall pay the employee the amount of the shortfall within 14 days.
(c) The employer must keep a record of the starting and finishing times of work, and any unpaid breaks taken, of each employee subject to an annualised wage arrangement agreement for the purpose of undertaking the comparison required by clause 28.3(b). This record must be signed by the employee or acknowledged as correct in writing (including by electronic means) by the employee, each pay period or roster cycle.
28.4 Base rate of pay for employees on annualised wage arrangements
For the purposes of the NES, the base rate of pay of an employee receiving an annualised wage under this clause comprises the portion of the annualised wage equivalent to the relevant rate of pay in clause 20—Minimum rates and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties.”
[21] It is clear that the Act and the award enable certain benefits to be aggregated into a rate of pay. I note that public holidays are dealt with in clause 40 of the award and that clause 40 is not a clause of the award which, in accordance with clause 28, may be included in an agreement for annualised salary. Clause 28.2 of the award refers only to penalty rates for ordinary hours for day workers. I also note that the Agreement does not appear to comply with the requirements of clause 28.2(b) of the award.
[22] An annualised or aggregated wage rate provides an alternative to the separate payment of wages and other monetary entitlements. So much is clear from the text of s 139(1) (f) (ii) of the Act. So much was also recognised in the Annualised Wage Arrangements decision where at paragraph 104 the Full Bench notes:
“[104] The requirement in s 139(1)(f)(ii) that a term about annualised wage arrangements provide an “alternative” to the “separate payment of wages and other monetary entitlements” means that it must provide for a different payment method which is an available substitute for that of separately calculating and paying employees the various monetary entitlements for which the award provides. Section 139(1)(f)(ii) does not condition the circumstances in which the alternative may be accessed, so that provisions which may be availed of at the election of the employer or only by agreement with the employee would both be permissible”.
[23] In my opinion the Applicant is correct when it submits that s 114 of the Act provides that an employee is entitled to be absent from work on a public holiday. That is, the benefit the NES provides is the entitlement to be absent from work. Section 116 of the Act provides that the employee is also entitled to be paid for that absence. In my view it follows that the NES entitlement to a day off is not capable of quantification in money terms. The entitlement under s 116 to payment is additional to the entitlement to be absent from work. As such one does not substitute for the other. The two entitlements are cumulative.
[24] Further in my opinion the entitlement to the day off is not a “monetary entitlement” within the meaning of s 139 (1) (f) (ii) of the Act. A day away from work is not capable of valuation in monetary terms. As such it is not capable of being included in an aggregated rate of pay.
[25] I pause to note that that may well be the reason public holidays are not included in clause 28 of the award providing for annualised salaries.
[26] It follows in my opinion that the entitlement to a day away from work on a public holiday is not included in the aggregated rate of pay. It may well be that the aggregated rate includes an amount to comply with s 116 of the Act however that is not clear as the agreement does not comply with clause 28.2(b) of the Award in that the agreement does not specify which provisions of the award are included in the aggregated salary nor how the aggregated salary was calculated. No material was produced by the Respondent which clearly identified that the s 116 entitlement was included in the aggregated rate of pay.
[27] Further the entitlement to be absent from work on public holidays is inconsistent with the manner in which the Respondent has made the rostering arrangements. The evidence is clear that the system adopted by the Respondent is that where a fitter is rostered to work a public holiday, they must do so 16.
[28] In respect to s 114 of the Act the Respondent submits that “[c]learly, under s.114 an employee is not entitled to be absent on a public holiday that the employer requires an employee to work, without reasonable excuse”. In my opinion that construction of s 114 is in error. Rather than the employee having a reasonable excuse not to work, in the first instance the request to work must be reasonable. It is to be remembered that the starting point is the entitlement to be absent from work. The request to work must be reasonable. It is only after the request is considered to be reasonable that a consideration of whether the refusal to work is reasonable arises. The system in place as evidenced by the Agreement in essence assumes that request to work on a public holiday is reasonable. No doubt that informs the Respondents construction of s 114 of the Act. However, that construction of the act is in error.
[29] The system in place is that a fitter may apply for leave or may have a basis to refuse to work. Mr Constantine in his witness statement notes that if granted leave the fitter will only receive the aggregate rate of pay 17. However, if the employee takes a day of paid leave he will be using up a day’s annual leave so that the aggregated rate of pay will in essence be cancelled out by the use of a day of paid annual leave. For an employee who has a basis to refuse to work in accordance with s 114 he will have the aggregated rate of pay. However, as I have said the aggregated rate of pay does not include the entitlement to be absent from work in accordance with s 114 of the Act. As such that employee is in fact uncompensated for the day away from work on the public holiday.
[30] In my opinion the aggregated rate of pay does not include the entitlement to be absent from work on a public holiday. As such I answer the question in the affirmative.
DEPUTY PRESIDENT
Final written submissions:24 August 2021
Printed by authority of the Commonwealth Government Printer
<PR735966>
1 Applicants Submissions in Reply paragraph 6.
2 Applicants Submissions paragraph 2.
3 The Agreement clause 17
4 Ibid clause 6
5 Ibid clause 10
6 [2017] FWCFB 3005
7 Applicants Outline of Submissions dated 22 July 2021 paragraphs 18 - 21
8 Dated 24 August 2021
9 [2018] FWCFB 154
10 Ibid paragraph 102
11 Agreement clause 12.4
12 Respondents Submissions, supra, paragraph 80
13 Ibid paragraph 87
14 Manufacturing and Associated Industries and Occupations Award 2020
15 Clause 28
16 Respondents submissions paragraph 80
17 Witness statement of Sean Constantine dated 9 August 2021 paragraph 11
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