"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Fuji Xerox Document Management Solutions Pty Ltd

[2015] FWC 6975

[2015] FWC 6975

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)
v
Fuji Xerox Document Management Solutions Pty Ltd
(C2015/733)

COMMISSIONER CAMBRIDGE SYDNEY, 9 OCTOBER 2015

Dispute settlement procedure - interpretation of terms of enterprise agreement - disputed terms dealing with payment of shift penalty when working overtime - practice of payment as part of alleged industry standard - determination of whether terms of enterprise agreement obliged payment - surrounding circumstances considered - no ambiguity found - construction of relevant terms as urged by applicant found to be correct - application granted - Parties to consult as to any Order.

[1] This Decision is made in respect of an application that was taken under section 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 9 April 2015, and it was made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU), and taken against Fuji Xerox Document Management Solutions Pty Limited (the employer).

[2] The Commission is empowered to deal with this matter by virtue of a DSP which is found at clause 8 of the Fuji Xerox Document Management Solutions (NSW) Enterprise Agreement 2014 (the Agreement).

[3] The dispute was unable to be resolved by conciliation and the matter has proceeded to arbitration involving a Hearing conducted in Sydney on 4 August 2015. The AMWU was represented by Ms L Saunders, who introduced evidence in the form of two witness statements one of which was admitted into evidence without requirement for the deponent of that statement to be cross-examined while the other individual, Ms B Griggs, gave evidence as a witness.

[4] The employer was granted permission to be represented by Mr J Darams, barrister, who was instructed by Ms A Tay, solicitor from Norton Rose Fulbright Australia. Mr Darams adduced evidence from two witnesses, both of whom were cross-examined in respect to the contents of statements that each had made for these proceedings.

Background

[5] The question in dispute in this instance has involved a claim by the AMWU that the employer has sought to adopt an incorrect interpretation of the terms of the Agreement which concern the payment of shift penalty loadings in circumstances where non-rotating afternoon and night shift workers are engaged to perform overtime on dayshifts. There was very little significant factual contest about the circumstances which gave rise to the dispute and the historical account of the application of the relevant terms contained in the Agreement.

[6] There are about 180 production and warehouse employees who work at the employer’s Moorebank site. These employees are engaged on fixed day, afternoon or night shift patterns. There are no rotating shift patterns of engagement. Employees are engaged on either permanent day, afternoon or night shifts.

[7] The employer offers its employees opportunities for overtime to be worked at times outside of regular shift engagements. In particular, employees are invited to express interest in working overtime on weekends. Historically, employees who are engaged on permanent afternoon or night shifts have been paid their relevant shift penalty loading, (20% in the case of afternoon shift and 30% for night shift) when they have been engaged on overtime on dayshifts.

[8] During 2014, the employer updated its payroll computer software system. The alteration to the payroll system resulted in a rejection of the inclusion of any shift penalty loading in respect to wage payments being made for any day shift. Consequently, the employer’s attention was drawn to the practice of afternoon and night shift workers receiving their relevant shift penalty loading (in addition to overtime rates) when they were engaged on dayshift overtime.

[9] Although the issue of afternoon and night shift workers retaining their relevant shift penalty loading when working dayshift overtime was raised during enterprise bargaining negotiations, no particular alteration to the terms of the applicable industrial instruments was pursued. However, in early 2015, the employer advised that the past practice of afternoon and night shift workers retaining shift penalty loading on overtime dayshift would cease. In addition, concern emerged about the prospect that overtime on weekends would be arranged so that afternoon and night shift workers would be required to work overtime that did not involve dayshift work.

[10] Various meetings which were held between the employer and the AMWU failed to resolve the contest which had emerged as to whether the terms of the Agreement required payment of relevant shift penalty loadings to afternoon and night shift employees when those employees were engaged to work overtime on dayshifts. Subsequently, the AMWU made the application which gave rise to these proceedings.

The AMWU Case

[11] At the Hearing, Ms L Saunders appeared on behalf of the AMWU. Ms Saunders made submissions which elaborated upon written outlines of submissions which had been filed on behalf of the AMWU.

[12] Ms Saunders commenced her submissions by stating that the dispute involved a requirement for the Commission to determine two issues. Ms Saunders said that the first of those issues was a fairly straightforward interpretation question and the second matter was a more complex issue involving restraining the employer in the manner in which it offered weekend overtime to afternoon and night shift workers.

[13] However, following an undertaking and clarification that had been provided on behalf of the employer during the Hearing, Ms Saunders subsequently submitted that there was no requirement for the Commission to determine the second issue regarding the employer’s particular arrangement for allocation of weekend overtime. Consequently, the determination of the matter was confined to the settlement of the contested interpretation of the particular provisions of the Agreement which the AMWU asserted provided an entitlement for afternoon and night shift employees to be paid their relevant shift loading for all overtime worked regardless of the start time of that overtime.

[14] The submissions of Ms Saunders focused upon clause 17.8 (d) of the Agreement which dealt with the issue relating to the payment of shift loading for afternoon and night shift employees when working overtime. Ms Saunders submitted that the relevant terms contained in clause 17.8 (d) the Agreement were identical to terms in a clause contained in the predecessor agreement 1 and she submitted that these terms reflected similar provisions contained in the Graphic Arts - General - Award 2000 (the Award).

[15] The submissions made by Ms Saunders referred to the Full Bench Decision in the case of The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited  2 (Golden Cockerel). Ms Saunders said that the Golden Cockrell Decision summarised the well-known and settled principles to guide the determination required in this matter.

[16] Ms Saunders made submissions which referred to provisions contained in the Graphic Arts, Printing and Publishing Award 2010 (MA000026) (the Modern Award). Ms Saunders submitted that when the contested terms of the Agreement were considered in the context of the provisions contained in other relevant industrial instruments, such as the Award and the Modern Award, the inclusion of shift loading as part of an employee’s ordinary rate for the purposes of overtime was “demonstrably an industry standard.” 3

[17] Ms Saunders also submitted that it was relevant to have regard for the practice that had been adopted by the employer and the former operator of the Moorebank site. Ms Saunders submitted that the employer had acknowledged that payment of shift loading in respect of all overtime worked had been a consistent practice at the site for many years.

[18] It was further submitted by Ms Saunders that a detailed examination of the actual words used in clause 17.8 (d) of the Agreement did not demonstrate any ambiguity. In particular, Ms Saunders referred to the words “all overtime worked” which she said were “pretty clear” and could not provide for some alternative interpretation which might restrict overtime to that worked at a particular time. Ms Saunders submitted that the evidence of surrounding circumstances should lead to a finding that the contested terms of the Agreement did not contain ambiguity and should be given their ordinary meaning.

[19] Ms Saunders made further submissions which she said would be relevant in the event that the Commission found that the contested terms contained some ambiguity. In this regard, Ms Saunders submitted that there was evidence established that there was a shared understanding between the Parties of the interpretation and application of the contested terms of the Agreement.

[20] Ms Saunders also made submissions which were critical of the impetus for the employer’s decision to alter a long-standing practice. Ms Saunders said that the upgrade to the computer payroll system appeared to operate as the underlying reason for the employer’s decision to cease payment of shift loading for afternoon and night shift employees performing dayshift overtime. Ms Saunders described this as “a computer says no situation.” 4

[21] In summary, Ms Saunders submitted that the contested terms of the Agreement were reflected as an industry standard in the Modern Award and these provisions were also contained in the Award which had been in operation since at least 1999. Ms Saunders urged that the Commission provide for an interpretation of clause 17.8 (d) of the Agreement which established an entitlement for employees engaged on afternoon shift and night shift to retain their shift loading penalty payments when working any overtime including overtime worked on dayshifts.

The Employer’s Case

[22] Mr J Darams, barrister, was granted permission to appear on behalf of the employer. Mr Darams referred to and relied upon written submissions which had been filed on behalf of the employer. Mr Darams made further oral submissions in elaboration of the earlier filed material and in response to the submissions made on behalf of the AMWU.

[23] The submissions made by Mr Darams acknowledged that the dispute involved a contest as to whether the terms of clause 17.8 (d) of the Agreement provided an entitlement for afternoon and night shift employees to be paid shift penalties when they were working overtime on dayshifts. Mr Darams submitted that these terms of the Agreement should be interpreted to mean that the shift loading is payable to a particular employee when they work on a particular shift which attracts the loading and not otherwise.

[24] The submissions made by Mr Darams stressed the proposition that the terms of clause 17.8 (d) of the Agreement should not be read so as to attach to an individual, but rather, to attach to the particular shift when the work was performed, be that on afternoon or night shift. In support of this interpretation, Mr Darams submitted that the AMWU interpretation would have some absurd consequences and in this regard he referred to the prospect that a dayshift worker, who was temporarily engaged to work on an afternoon shift, would not be entitled to any shift loading for that afternoon shift.

[25] Mr Darams made further submissions which focused upon what he said was the difference between the terms of clause 17.8 (d) of the Agreement and the provisions contained in clause 6.2.3 (c) of the Award. Mr Darams acknowledged that the Agreement incorporated the terms of the Award. However, he stressed that there was an inconsistency between the Agreement and the Award, and therefore the terms of the Agreement prevailed to the extent of any inconsistency. Consequently, Mr Darams submitted that there was an intention to depart from the Award provision as contained in clause 6.2.3 (c), and this was reflected by the terms contained in clause 17.8 (d) of the Agreement.

[26] Mr Darams made further submissions which challenged the assertion that there had been some settled, excepted, or agreed interpretation of clause 17.8 (d) of the Agreement. In particular, Mr Darams rejected the submission made by the AMWU that the discussions during the enterprise bargaining negotiations could be construed to reflect acceptance by the employer that the terms of the Agreement were properly reflected by past practice.
[27] Mr Darams also made submissions which strongly opposed the particular Orders that were sought by the AMWU. Mr Darams submitted that the Commission did not have judicial power to make Orders for back pay as had been sought by the AMWU.

[28] In conclusion, Mr Darams submitted that the dispute in this instance should be determined on the basis that the terms contained in clause 17.8 (d) of the Agreement were clearly and deliberately inconsistent with the terms of clause 6.2.3 (c) in the Award. Therefore, according to the submissions of Mr Darams, the proper interpretation of clause 17.8 (d) of the Agreement established that the payment of afternoon and night shift penalties were confined to work actually performed on an afternoon or night shift and did not entitle an afternoon or night shift employee to retain their shift penalty loading when performing overtime work on a dayshift. Mr Darams urged the Commission to reject the interpretation of the contested terms of the Agreement as was proposed by the AMWU.

Consideration

[29] The dispute in this instance has involved a contest regarding the correct interpretation or construction that should apply to particular terms of the Agreement.

[30] The principles that are to apply to resolving a contested interpretation/construction of the terms contained in an Enterprise Agreement has been the subject of an authoritative Decision of a Full Bench of this Commission in the matter of The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited  5 (Golden Cockerel). At paragraph 41 of the Golden Cockerel Decision, the Full Bench set out the following principles that apply to the approach to interpretation/construction of terms of an Enterprise Agreement:

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) 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;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.

10. 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.

[31] Accordingly, the principles as established by the Full Bench Decision in Golden Cockerel have been adopted and relevantly applied in this instance to the contested construction of the terms of the Agreement.

[32] The contested construction question in this instance can be summarised as a dispute as to whether the terms of the Agreement, specifically clause 17.8, and in particular sub-clause 17.8(d), establish an entitlement for afternoon and night shift workers to be paid the respective shift penalty loading of 20% and 30 % when working a dayshift as overtime.

[33] The AMWU has asserted that the words of the contested provisions should be given their plain meaning having regard for evidence of surrounding circumstances, and in particular, having regard for the terms contained in the Award, the Modern Award, and the past practice of Parties to the Agreement and its predecessor instruments. The AMWU has contended that on the basis of regard for the evidence of surrounding circumstances, the terms of sub-clause 17.8 (d) of the Agreement should be given a plain meaning which establishes that all persons engaged as afternoon or night shift workers are to be paid their relevant shift penalty loading for all overtime worked, including when such overtime involves work on a dayshift.
[34] Alternatively, the employer has contended that the words contained in clause 17.8 of the Agreement and sub-clause 17.8 (d) specifically, cannot be given the plain meaning as advanced by the AMWU. The employer has asserted that a proper construction of the words contained in sub-clause 17.8 (d) of the Agreement discloses an inconsistency between the terms of the Agreement and the relevant terms of the Award. The inconsistency between the terms of the Agreement and the terms of the Award as contended for by the employer, results in the terms of the Agreement prevailing and thus providing for a meaning which generates a different outcome to that applicable under the Award. The consequent outcome, as asserted by the employer, is that payment of the shift penalty loadings is contingent upon work, including overtime, actually being performed on an afternoon or night shift.

[35] Further, the employer has asserted that the meaning of the words contained in sub-clause 17.8 (d) as was asserted by the AMWU, would produce a number of illogical results. For example, in circumstances when a day worker was engaged on a temporary overtime shift which was an afternoon or night shift, he or she would not receive the relevant shift penalty loading, but only the overtime rates calculated on the (unloaded) day shift figures.

[36] It is relevant to set out the entire provisions contained in clause 17.8 of the Agreement which is in following terms:

“17.8 Five Days per Week - 7.5 hour shift cycle

(a) The employer may require any employee to work a 7.5 hour shift system over 5 consecutive days.

(b) An unpaid meal break of 30 minutes and one paid tea break of 15 minutes will apply per shift. A three shift system may be applied, at the discretion of the employer. Start times for ordinary shifts will be between:

(i) 6:00am to 10:00am for Day Shift

(ii) 2:00pm to 6:00pm for Afternoon Shift

(iii) 10:00pm to 2:00am for Night Shift

(c) If permanent changes to ordinary shift start times are necessary to meet operational, business or customer requirements, volunteers will be sought. The conditions to be applied in the event of permanent changes to start times are:

(i) Four week's notice will be given by the employer; and

(ii) employees will be volunteers.

(d) Employees on afternoon shift will attract a 20% shift penalty and those on night shift a 30% shift penalty, including all overtime worked.”

[37] The most significant terms are those words which are contained in sub-clause 17.8 (d) which state;

“Employees on afternoon shift will attract a 20% shift penalty and those on night shift a 30% shift penalty, including all overtime worked.”

[38] It is also relevant to set out two further provisions of the Agreement. Firstly the definition of “Award” contained in clause 3 Definitions, and clause 7 Relationship to Parent Award which are in the following terms:

“3. DEFINITIONS

In this Agreement:
…
"Award" means the Graphic Arts - General Award 2000 as it stood on 1 March 2006.

7. RELATIONSHIP TO PARENT AWARD

7.1 Subject to clause 7.2, the Award shall be incorporated into this Agreement.

7.2 The parties acknowledge and agree that the provisions in the Award regarding picnic days shall not apply to this Agreement.

7.3 Where there is any inconsistency between this Agreement and the Award, this Agreement shall take precedence to the extent of any inconsistency.

7.4 The parties agree that the facilitation provisions of the Award will not be relied upon except by agreement between the parties or as otherwise provided in this Agreement.”

[39] Consequently, by virtue of clause 7 of the Agreement, the terms of the Award become terms of the Agreement except where there is any inconsistency between terms of the Award and the Agreement, in which case the terms of the Agreement then prevail. In these circumstances, as the terms of the Award have in effect been incorporated into the Agreement, save for any inconsistency, it is relevant to refer to a particular provision of the Award which deals with what the Award describes as “shift allowance” and is set out as follows:

“6.2.3(c) The shift allowance is part of the employee's weekly wage for the purpose of calculating the overtime rate payable in accordance with this award.”

[40] It should also be noted that sub-clause 31.3 (c) the Modern Award contains provisions in identical terms to those at sub-clause 6.2.3 (c) of the Award.

The Question of Ambiguity

[41] The approach to resolving the contested construction question should logically commence with an examination of the relevant words so as to discern whether or not these words contain some ambiguity. It is well established that the approach to resolving questions of contested construction should focus upon providing the words under examination with their plain and ordinary meaning unless for some cogent reason such ordinary meaning is inappropriate and unavailable.

[42] The words “Employees on afternoon shift will attract a 20% shift penalty and those on night shift a 30% shift penalty, including all overtime worked” which are found in sub-clause 17.8 (d) of the Agreement, would appear to have a clear and uncontroversial meaning. The significant operative words are “including all overtime worked.” These words unequivocally establish that afternoon and night shift penalty loadings apply to all overtime worked. As a matter of practical, logical implication, overtime worked by afternoon or night shift workers would usually, but not always, involve work at times other than afternoon or night shifts.

[43] The terms of sub-clause 17.8 (d) of the Agreement can be contrasted with terms found in many industrial instruments which establish that overtime rates stand alone. That is, in many instances, industrial instruments specifically prohibit what is sometimes described as payment of “a penalty on a penalty”, that being the payment of an overtime penalty prescription such as time and a half or double time, calculated upon a rate that includes a shift penalty loading of 20 or 30%.

[44] Further, it is abundantly clear that both the terms of sub-clause 6.2.3 (c) of the Award and sub-clause 31.3 (c) of the Modern Award, establish that “a penalty on a penalty” situation is to apply such that overtime rates of time and a half or double time and similar, are to be calculated on a rate that includes any relevant shift allowance or shift penalty loading.

[45] However, it was argued by the employer that there was an inconsistency between the terms of sub-clause 17.8 (d) of the Agreement and sub-clause 6.2.3 (c) of the Award. The inconsistency was advanced as a manifest departure from the “penalty on a penalty” arrangements that would otherwise be prescribed by the Award. Therefore, the terms of sub-clause 17.8 (d) of the Agreement were said to have disengaged the shift penalty from application to all overtime worked, and instead confined payment to circumstances where there was actual performance of work on an afternoon or night shift.

[46] The fundamental difficulty with the employer’s proposition which alleged inconsistency between the relevant terms of the Agreement and those of the Award, is that in order to disengage the payment of shift penalty from application to all overtime worked, it would require there to be additional words read into the terms of sub-clause 17.8 (d) of the Agreement. Specifically, the sub-clause would, for example, need to include words that referred to an (or any) employee working on an afternoon shift or night shift. Instead, significantly, sub-clause 17.8 (d) of the Agreement uses the plural terminology of “Employees on afternoon shift” and “those on night shift” [emphasis added].

[47] Therefore, the plural terminology used in sub-clause 17.8 (d) is consistent with the broader application of shift penalty payments rather than any limitation of the payments to work actually performed on a particular afternoon or night shift. Further, the absence of particular words which would operate to confine the shift loading payments is compounded by the use of the words “including all overtime worked” [emphasis added].

[48] The employer also asserted that ambiguity existed in respect to sub-clause 17.8 (d) of the Agreement because the construction for the sub-clause as urged by the AMWU, would give rise to illogical outcomes. As an example, a day shift worker would not be entitled to an afternoon or night shift penalty loading when working overtime on an afternoon or night shift. Although such an outcome would seem to be unusual, it was unclear from the evidence as to whether, as a matter of practice, this circumstance had actually arisen.

[49] In any event, the submissions made by the AMWU confirmed acceptance that, as a matter of principle, the construction that it urged for sub-clause 17.8 (d) of the Agreement would not entitle a day shift worker to receive afternoon or night shift penalty loadings if working overtime on an afternoon or night shift. 6 Further, it was clear that there were a variety of implications which would arise from the construction of sub-clause 17.8 (d) as advanced by the AMWU. The most obvious implication being that afternoon and night shift workers represented a more costly proposition when the employer was allocating overtime and considering the needs of the business.

[50] The competing propositions for construction of the terms of sub-clause 17.8 (d) of the Agreement have been evaluated and balanced. The contested terms of the Agreement have been examined having regard for evidence of surrounding circumstances so as to determine whether an ambiguity exists. The words “Employees on afternoon shift will attract a 20% shift penalty and those on night shift a 30% shift penalty, including all overtime worked” when considered in conjunction with the context that can be extracted from other provisions of the Agreement, the Award and the Modern Award do not establish ambiguity and these words should be given their plain and ordinary meaning. In my view, the language of these terms of the Agreement is not ambiguous or susceptible to more than one meaning.

Past Practice and Attempted Change

[51] The fact that there had been a long-standing practice involving a particular observance of the contested terms of the Agreement does not operate to support a construction that would accord with that particular observance. Similarly, the employer's attempt to negotiate an alteration to the terms of the Agreement so as to presumably facilitate a change to the long-standing practice is not a matter that is determinative of the correct construction issue.

[52] In circumstances where, during the course of the enterprise bargaining negotiations, the employer unsuccessfully attempted to alter the terminology of the Agreement, there would be a natural tendency to assume that the terms of the Agreement established an entitlement for the payment made in accordance with past practice. However, such an assumption cannot translate into a factor which is relevant to support a determination that the construction of the terms should be consistent with the past practice.

[53] Further, in respect to the question of the past practice of the Parties, it is relevant to refer to the following extract from the Full Bench Decision in Essential Energy v Australian Municipal, Administrative, Clerical and Services Union and Others  7 (Essential Energy):

“[23] In addition, there is one well-established further principle relevant to the interpretation of industrial instruments, including enterprise agreements, which we consider to be relevant, namely that it is not permissible to take into account the conduct of parties which occurs after an industrial instrument is made as an aid to interpret that industrial instrument.”

[54] It is also relevant to refer to the paragraphs which immediately precede the extract quoted above from the Essential Energy Decision and which includes the often cited extract from Madgwick J in Kucks v CSR Limited  8:

“But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[55] Accordingly, the words “Employees on afternoon shift will attract a 20% shift penalty and those on night shift a 30% shift penalty, including all overtime worked” which are contained in sub-clause 17.8 of the Agreement, are not inconsistent with the terms of sub-clause 6.2.3 (c) of the Award. Consequently, the contested terms of the Agreement are to be read in conjunction with the relevant terms of the Award and sub-clause 31.3 (c) of the Modern Award.

Conclusion

[56] The determination of the dispute in this instance has involved a requirement to settle a contested construction question arising from particular terms contained in an Enterprise Agreement. The contest has primarily focussed upon the competing propositions as to whether the words “Employees on afternoon shift will attract a 20% shift penalty and those on night shift a 30% shift penalty, including all overtime worked” provide an entitlement for afternoon and night shift workers to receive their applicable shift penalty loading in respect to overtime worked on a dayshift.

[57] The AMWU contended that these words did not contain any ambiguity and should be given their plain meaning which would establish that afternoon and night shift penalty loadings were applicable to all circumstances of overtime, including when overtime was worked on a dayshift. The employer opposed that construction and advanced an alternative interpretation which would confine payment of afternoon or night shift penalties to circumstances where an individual actually performed overtime work on an afternoon or night shift.

[58] Upon analysis, and application of the principles for resolution of questions of contested construction as established by the Golden Cockerel Decision, I have concluded that the disputed terms of the Agreement cannot be identified as containing ambiguity. Therefore these words should be given their plain and ordinary meaning as contended for by the AMWU.

[59] The correct construction of sub-clause 17.8 (d) of the Agreement results in an entitlement for all afternoon and night shift workers to receive their relevant shift loading when they perform any overtime irrespective of the time that the overtime is actually worked.

[60] In view of the conclusions that I have reached, I determine that the application made by the AMWU is, in broad terms, granted.

[61] In view of the determination made as to the correct construction and interpretation that should be given to sub-clause 17.8 (d) of the Agreement, it would seem to be unnecessary to formulate any Orders to supplement this Decision. In particular the Commission will not make Orders which would purport to require specific payment or back payment as were sought by the AMWU.

[62] The Parties are required to consult in respect to any requirement for an Order to be issued to reflect the determination of the dispute and advise the Commission accordingly within 21 days from the date of this Decision.

COMMISSIONER

Appearances:

Ms L Saunders for the Australian Manufacturing Workers’ Union.

Mr J Darams of Counsel, with Ms A Tay, solicitor from Norton Rose Fulbright Australia for the employer.

Hearing details:

2015.

Sydney:

August, 4.

 1   Salmat Document Management Solutions (NSW) Workplace Agreement 2011, clause 17.8 (e).

 2   The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited [2014] FWCFB 7447.

 3   Transcript @ PN694.

 4   Transcript @ PN742.

 5   The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited [2014] FWCFB 7447.

 6   Transcript @ PN702.

 7   Essential Energy v Australian Municipal, Administrative, Clerical and Services Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Association of Professional Engineers, Scientists and Managers, Australia [2015] FWCFB 1981.

 8 Kucks v CSR Limited [1996] IRCA 166 (19 April 1996), 66IR182.

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