"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Metro Trains Melbourne Pty Ltd
[2024] FWC 648
•14 MARCH 2024
| [2024] FWC 648 |
| 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
Metro Trains Melbourne Pty Ltd
(C2023/5964)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 14 MARCH 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Metro Trains Melbourne Pty Ltd (Metro Trains) operates train services on the electrified metropolitan railway network in Greater Melbourne. Metro Trains also maintains the railway network and rolling stock, which it leases from the State. Metro Trains and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) are covered by the Metro Trains Melbourne Rolling Stock Enterprise Agreement 2019 (Agreement), which passed its nominal expiry date on 30 June 2023, and are in dispute about when overtime rates are payable to a shift worker if the worker has taken a period of personal leave during a shift cycle.
The dispute concerns two categories of employees. First, those employees who work an 8-hour shift. Second, those who work a 12-hour shift. Both categories regularly work between 88 and 96 hours in a fortnight, which the AMWU maintains is between 12 and 20 hours of overtime in each fortnight.[1]
On 6 October 2023, the AMWU applied under s 739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with the dispute in accordance with the dispute resolution procedure in clause 12 of the Agreement. The dispute was not resolved through conciliation and the parties have agreed that the Commission should determine the dispute by arbitration by answering the following questions:
Under the Agreement, is a full-time employee who works 8-hour shifts, has been rostered for 11 days in a two-week period and works on the 11th day, but has been absent from work on paid leave for all or part of one or more days in the period, entitled to overtime rates of pay for work on the 11th day?
Under the Agreement, is a full-time employee who works 12-hour shifts, has been rostered for 15 days in a four-week period and works on the 15th day, but has been absent from work on paid leave for all or part of one or more days in the period, entitled to overtime rates of pay for work on the 15th day?
The AMWU contends that both questions should be affirmatively answered.[2] It says that employees engaged to work 8-hour and 12-hour shifts are entitled to overtime payments for hours worked more than their ordinary hours (10 and 14 days respectively), including when those ordinary hours included periods of personal leave.[3]
Metro Trains contends that there is currently no disagreement between the parties in relation to the payment of employees who work 12-hour shifts.[4] The parties agree that Metro Trains counted periods of personal leave in calculating the number of ordinary hours worked by an employee and when overtime penalties for 12-hour shift workers are payable, but not so for 8-hour shift workers. However, Metro Trains does not concede that its practice is a correct application of the Agreement for 12-hour shift workers.
The parties agree that other periods of authorised paid leave are counted as part of an employee’s ordinary hours for both classes of shift workers in working out when overtime penalties are payable to both 8-hour and 12-hour shift workers.
Metro Trains contends that before overtime is payable to an employee, the requisite number of ordinary hours must be worked - a physical presence at the workplace is required.[5] According to Metro Trains, the employee must have been present at the workplace and have physically worked ordinary hours before being entitled to overtime under the provisions of the Agreement. It says that, under the Agreement, personal leave is to be paid where an employee is absent from work and the Agreement makes clear that an absence is different to attending work.[6]
For the reasons which follow, the construction advanced by Metro Trains is erroneous and must be rejected.
The answers to the agreed questions turn on the proper construction of the Agreement. The principles relevant to construing an enterprise agreement are well-known and uncontroversial. These were summarised by a Full Court of the Federal Court of Australia in WorkPac Pty Ltd v Skene[7] as follows:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).”[8]
Clause 54 of the Agreement deals with ordinary hours and relevantly provides:
“54 ORDINARY HOURS
54.1 The ordinary hours of work for a full-time Employee shall be an average of thirty-eight (38) hours per week, and shall be:
(a) For Employees who work Monday to Friday, one hundred and fifty-two (152) ordinary hours per four (4) week cycle and operating on a nineteen (19) day, four (4) week cycle. Employees engaged on a nineteen (19) day, four (4) week cycle will be provided with an Extra Day Off (EDO) that represents the twentieth day of the four (4) week cycle in accordance with clause 55;
(b) For full-time Employees who work a seven (7) day roster, an average of thirty-eight (38) hours per week;
(c) Not in excess of ten (10) days per pay fortnight;
(d) Not less than seven point six (7.6) hours; and
(e) Not in excess of twelve (12) hours per shift, inclusive of overtime, except in exceptional circumstances and then only if expressly authorised by the Company.”
Clause 61 of the Agreement defines a shift worker for the purpose of the Agreement and the National Employment Standards (NES) “as an [e]mployee who is required to work rotating continuous rostered shifts, i.e. twenty-four (24) hours a day, seven (7) days a week, or permanent Night Shift”. Ordinary hours for a shift worker are as defined under clause 54.
Clause 68 of the Agreement deals with personal leave and sets out the method and manner of accrual and the circumstances in which an employee may be absent from work on account of personal illness or injury, or to care for members of their immediate family or household who are sick and require care and support and be paid for some or all of the absence from the employee’s personal leave accrual.
Schedule A of the Agreement sets out the classifications covered by the Agreement under that which is described as the “C Structure -Trades and Non-Trades stream”. Shift workers covered by the Agreement who are members of the AMWU affected by this dispute fall within that stream.
Clause 68.1 of the Agreement, which applies to “C Classifications” provides, inter alia, that:
“(a) When an employee is absent for a full shift, one (1) day of Personal leave will be deducted from their accrued entitlement and payment will be made for the Employee's rostered ordinary hours for that day.
(b) When an employee is absent for part of a shift the actual hours absent from work will be deducted from their accrued entitlement and payment will be made for the actual hours absent from work.
(c) For accrual and deduction purposes a day will be defined as seven point six (7.6) hours. (Part-day absences will be deducted up to a maximum of seven point six (7.6) hours.)
(d) Where the hours of the rostered ordinary shift, or the length of the absence, is greater than seven point six (7.6) a build-up payment at ordinary time will apply for the difference between seven point six (7.6) hours and the rostered ordinary hours on that day/s, except in cases where an Employee's accrued personal leave balance is less than seven point six (7.6) hours. In this case, payment for personal leave will be made in accordance with the available accrued personal leave balance.” [Underlining added]
Clause 40 of the Agreement relevantly provides that overtime means all hours worked outside the ordinary hours. Each hour (or part thereof) of overtime shall be paid at the rate applicable for the day on which the hour (or part thereof) was worked.” Clause 41 sets out the penalty payment for working overtime which, subject to some limitations not presently relevant, is double time.
Clause 14.4 of the Agreement requires that employees shall work reasonable overtime and in accordance with shift rosters which may vary from time to time, while clause 56 provides that Metro Trains may require an employee to work reasonable overtime at overtime rates subject to an employee’s right to refuse working hours which are unreasonable having regard to several enumerated matters.
Clauses 14.4, 40, 41 and 56 of the Agreement are relevantly concerned with the arrangement of and payment for hours of work which are overtime hours, that is, the hours worked outside ordinary hours. The overtime provisions do not operate on the basis that the ordinary hours which condition the overtime entitlement must all be worked before overtime is payable. That which is relevant is that the overtime hours be worked and that that work be “outside” ordinary hours.
For a full-time shift worker under the Agreement, ordinary hours of work are an average of 38 hours per week, on days not exceeding ten days per fortnight, with a minimum 7.6 hours and a maximum of 12 hours including overtime on any shift. It is work outside these parameters that will be overtime. But there is nothing in the text of the Agreement which requires that each ordinary hour within these parameters must be worked. Absences on periods of paid personal leave are part of an employee’s ordinary weekly average hours and the minimum and maximum daily ordinary hours constitute the employee's ordinary hours. Subject to the level of accrual, personal leave is paid by reference to the number of rostered ordinary hours the employee would have worked during the period of the absence. So much is clear from the underlined segments of clause 68.1 earlier reproduced. An employee who is absent on paid personal leave is paid for being absent during rostered ordinary hours. The absence from rostered ordinary hours for which an employee is on paid personal leave counts as part of the employee’s ordinary hours in assessing whether a particular parameter for working ordinary hours is met or exceeded.
The statutory context in which the Agreement was made lends weight to this construction. Clause 68.1 of the Agreement provides for a quantum of personal leave, which entitlement is not more than the NES (s 96 of the Act), while clause 54.1, which provides that ordinary hours of work will be an average of thirty-eight (38) hours per week, is consistent with the prohibition of an employer requiring an employee to work no more than 38 hours per week, unless the additional hours are reasonable (s 62(1)). The Act does not treat additional hours as overtime in the sense that these additional hours attract a statutory penalty payment but permits an employee to refuse to work unreasonable additional hours beyond the lesser of 38 hours or the employee’s ordinary hours (s 62(1) and (2)). In this context, the hours that an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are relevantly authorised (s 62(4)).
The Agreement does not speak to reasonable additional hours. Rather, it deals with “reasonable overtime” (cl 56 of the Agreement). Reasonable overtime must be worked (cls 14.4 and 56.1) but overtime that would result in an employee working hours which are unreasonable may be refused (cl 56.2). In substance, the concepts are the same in that both reasonable additional hours and reasonable overtime are concerned, in the case of a full-time employee, with hours of work beyond 38 hours or an average thereof in a week. These are the employee’s ordinary hours of work. A construction that would result in an employee being required to work additional hours under the Agreement (because of an earlier absence on paid personal leave), which do not attract overtime payment and so may not be refused because they are ordinary hours would be inconsistent with the employee’s right under the NES to refuse to work the additional hours because the hours were unreasonable. Under the NES, the period an employee who is on an authorised absence from rostered ordinary hours counts as part of the hours worked by the employee in a week for the purposes of ensuring that an employee is not required to work more than 38 hours in a week. So too are those hours part of an employee’s ordinary hours under the Agreement for the purpose of assessing whether any additional hours the employee works are overtime hours – that is, whether the additional hours worked are outside the employee’s ordinary hours.
For these reasons, Metro Trains’ construction is untenable.
On a proper construction of the Agreement, I answer the agreed questions posed as follows:
Question 1:Under the Agreement, is a full-time employee who works 8-hour shifts, has been rostered for 11 days in a two-week period and works on the 11th day, but has been absent from work on paid leave for all or part of one or more days in the period, entitled to overtime rates of pay for work on the 11th day?
Answer:Yes
Question 2:Under the Agreement, is a full-time employee who works 12-hour shifts, has been rostered for 15 days in a four-week period and works on the 15th day, but has been absent from work on paid leave for all or part of one or more days in the period, entitled to overtime rates of pay for work on the 15th day?
Answer: Yes
In answering these questions, I have taken the reference in each to “paid leave” as a reference to “paid personal leave” as that is what the dispute was about and neither party made any submissions about the effect of any other paid leave provision in the Agreement on an employee’s overtime payment entitlements.
DEPUTY PRESIDENT
Appearances:
Matter determined on the papers
Final written submissions:
Applicant, 22 December 2023 and 31 January 2024
Respondent, 17 January 2024
Printed by authority of the Commonwealth Government Printer
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[1] AMWU’s Outline of Submissions at [4], 22 December 2023
[2] Ibid at [28]
[3] Ibid at [27]
[4] Metro Trains’ Outline of Submissions at [4], 17 January 2024
[5] Ibid at [10]
[6] Ibid
[7] [2018] FCAFC 131; 264 FCR 536
[8] Ibid at [197]
Printed by authority of the Commonwealth Government Printer
<PR772277>
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