"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" Known as the Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd

[2016] FWC 743

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)

McCain Foods (Aust) Pty Ltd

(C2015/677, C2015/2710)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 4 FEBRUARY 2016

Applications to deal with disputes under the applicable enterprise agreement concerning the

payment of overtime to casual employees and whether employees who work 12 hour shifts are

entitled to shift penalties when they work overtime – casual employees engaged to work 12

hour shifts to be paid overtime once they have worked in excess of the fixed ordinary hours on

shift in any week and 12 hour shift employees not entitled to be paid shift allowances when

working overtime.

[1] On 1 April 2015 the “Automotive, Food, Metals, Engineering, Printing and Kindred

Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) lodged

an application (C2015/677) regarding a dispute concerning the payment of overtime to casual

employees engaged by McCain Foods (Aust) Pty Ltd (McCain - the Respondent) to work a

12 hour shift. On 30 April 2015 the AMWU lodged a further application (C2015/2710)

concerning a dispute as to whether employees who work 12 hour shifts are entitled to shift

penalties when they work overtime.

[2] The applications were made under s.739 of the Fair Work Act 2009 (the Act) and in

accordance with the dispute resolution process of the McCain Foods (Aust) Pty. Ltd. Ballarat

1

Production Enterprise Agreement 2014

(the Agreement).

[3] The Fair Work Commission (the Commission) convened a conference on 14 April

2015 in respect of C2015/677 and conferences on 1 and 24 June 2015 in respect C2015/2710.

Those conferences failed to resolve the disputes, with the AMWU indicating that it wished to

have the disputes determined by the Commission in accordance with the Agreement’s dispute

resolution process. Directions for the filing of submissions and evidentiary material were

issued on 9 July 2015 and 25 June 2015 respectively, with both matters listed for hearing on

14 August 2015. The hearing date was vacated on 12 August 2015 in the light of a request

from the parties for the disputes to be dealt with on the papers. It was not disputed that the

Commission had the jurisdiction to determine the dispute under clause 9 – Dispute Resolution

Process of the Agreement.
[2016] FWC 743

[4] For the reasons set out below, I find that casual employees engaged to work 12 hour

shifts are only entitled to be paid overtime once they have worked in excess of the fixed

ordinary hours on shift in any week, i.e. in excess of 38 hours in any week, and that

employees working 12 hour shifts under the 7 day/12 hour continuous shift roster are not

entitled to be paid shift allowances when working additional hours beyond their ordinary

rostered hours of work.

Statement of Agreed Facts

[5] The parties provided a Statement of Agreed Facts (the Statement) which set out the

history regarding the implementation of the 7…

CaseChat Overview and Summary

In the case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v McCain Foods (Aust) Pty Ltd, the Fair Work Commission (FWC) was asked to determine two disputes concerning the payment of overtime and shift penalties under the McCain Foods (Aust) Pty Ltd. Ballarat Production Enterprise Agreement 2014 (the Agreement). The first dispute concerned whether casual employees engaged to work 12-hour shifts were entitled to overtime for hours worked beyond the eight-hour mark on any given day. The second dispute was whether employees working 12-hour shifts were entitled to shift penalties when they worked overtime.

The Commission considered the language of the Agreement and found that casual employees engaged to work 12-hour shifts were only entitled to overtime once they had worked in excess of the fixed ordinary hours on shift in any week, which equates to 38 hours in any week. This conclusion was reached by examining the plain meaning of the relevant clauses and comparing the overtime provisions of the 2011 Agreement with those of the 2014 Agreement. The Commission found that clause 7.6 of the Agreement did not operate to preserve McCain's pre-existing approach to the payment of overtime for casual employees working 12-hour shifts.

Regarding the second dispute, the Commission found that employees working 12-hour shifts under the 7-day/12-hour continuous shift roster were not entitled to be paid shift allowances when working additional hours beyond their ordinary rostered hours of work. The Commission reached this conclusion by closely examining the relevant clauses and determining that there was no common understanding regarding the application of subclause 19.8.2 to 7-day/12-hour continuous shift roster workers, and therefore, an absence of custom and practice in this regard.

In summary, the Fair Work Commission determined that casual employees engaged to work 12-hour shifts are only entitled to overtime once they have worked in excess of 38 hours in any week and that employees working 12-hour shifts under the 7-day/12-hour continuous shift roster are not entitled to be paid shift allowances when working overtime.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established