“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Paper Australia Pty Limited T/A Australian Paper
[2016] FWC 4661
•9 AUGUST 2016
| [2016] FWC 4661 |
| FAIR WORK COMMISSION |
INTERIM 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
Paper Australia Pty Limited T/A Australian Paper
(C2016/864)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Paper Australia Pty Ltd
(C2016/3277)
National Union of Workers
v
Paper Australia Pty Ltd T/A Australian Paper
(C2016/3482)
COMMISSIONER RYAN | MELBOURNE, 9 AUGUST 2016 |
Alleged dispute about hours of work.
[1] The matter in dispute relates to the same provision in two recently approved enterprise agreements: the Australian Paper (Enterprise) Agreement, 2016-2019 Maryvale Mill Mechanical Maintenance and Engineering Store (Maintenance Agreement) and the Maryvale Mill Electrical/Plumbing Maintenance Enterprise Agreement 2016-2019 (Electrical Agreement). Both agreements were approved by the Commission on 24 March 2016 and the each agreement provided for a significant change in hours of work to commence on 10 April 2016. The dispute arose when the employer advised the employees as to how the relevant clause would operate as from 10 April 2016.
[2] The AMWU filed the first application on 14 April 2016 with the CEPU and the NUW filing similar applications at later dates. As the issue in dispute was common between the two agreements all proceedings were dealt on the basis that whilst the three applications were not formally joined the three applications would be dealt with together both at the conciliation stage and at the arbitration stage.
[3] The three applications were listed for hearing on 4 and 5 July 2016. Evidence was given on behalf of the applicant unions by Mr Steve Dodd, AMWU Organiser, Mr Peter Mooney, CEPU Organiser, Mr Darren Canning, Maintenance Fitter and AMWU senior shop steward at the Maryvale Mill, Mr Frank Murtagh, Fitter and former AMWU shop steward at the Maryvale Mill, Mr Michael Warne, Maintenance Fitter and AMWU deputy shop steward at the Maryvale Mill. Evidence was given on behalf of Australian Paper by Mr Mark Nelson, General Manager – Human Resources for Australian Paper, Mr Rodney Beales, Human Resources Manager for Australian Paper, and Mr Andrew Farr, Partner of Lander & Rogers, lawyers for Australian Paper.
Background to the Dispute
[4] Bargaining for new enterprise agreements had been ongoing for over a year without success when Australian Paper, on 22 October 2015, filed two applications pursuant to s.240 of the Act notifying the existence of bargaining disputes in relation to each of the proposed enterprise agreements.
[5] All of the employees covered by the two agreements have for several decades worked a 35 hour week. A key issue in dispute between the parties during bargaining was the intention of the unions to keep the 35 hour week and the intention of Australian Paper to remove the 35 hour week as part of a process to save $3,000,000.00 in maintenance costs. Agreement was eventually reached when the unions advised that they would put a proposition to the maintenance and stores employees that workers would work 38 hours for 35 hours pay. Australian Paper accepted this proposal as it delivered most (but not all) of the savings that Australian Paper was required to achieve in relation to the two maintenance agreements.
[6] The parties prepared the two new enterprise agreements using the two existing enterprise agreements. The parties drafted a new hours of work clause and made a number of consequential changes to other clauses to take account of the new hours of work.
[7] The unions sold the new enterprise agreements to their respective memberships and Australian Paper put the two new enterprise agreements to a vote of the employees. The vote was conducted by the unions by way of a show of hands at meetings of the two relevant groups of employees. Each agreement was approved by a majority of the employees to be covered by the agreement.
[8] The dispute in this matter arose when Australian Paper went to implement the new hours of work clause. Once the unions and employees saw the proposed finish times for day workers working the new rosters they realised that Australian Paper had a very different understanding of the operation of the clause than the unions and employees had.
The details of the dispute
[9] The essence of the dispute concerns the finish times for dayworkers who work a 10 hour ordinary hour day in accordance with the roster set out in the table attached to clause 19.2. Relevantly clause 19.2 is divided into 3 parts and the third part of the clause deals with dayworkers working the new 38 hour week. The relevant part of the dayworker provisions of clause 19.2 is as follows:
“At the commencement of the 38 ordinary hours 4 day per week roster on and from 10 April 2016, the thirty-eight (38) ordinary hours for Dayworkers shall be worked over a four day week in accordance with the roster profile set out below.
Start times for the commencement of Day Shift under the roster profile will be 7.00 a.m. or may be varied to between 6.00 a.m. and 7.30 a.m. as agreed by the majority of employees in the workplace or a section or sections of it.
M | T | W | T | F | S | S | M | T | W | T | F | Hrs/wk |
A | X | X | X | X | O | O | X | X | X | X | 38 hrs | |
Hrs | 8 | 10 | 10 | 10 | - | - | 10 | 10 | 10 | 8 | ||
B | O | X | X | X | X | X | X | X | X | O | ||
Hrs | - | 10 | 10 | 10 | 8 | 8 | 10 | 10 | 10 | - |
[10] Clause 19.2 provides a clear start time for dayworkers but does not specify the finish time of either the 8 hour days or the 10 hour days. There is no dispute as to the operation of the table in relation to 8 hour days. The dispute only concerns the finish times for dayworkers on those days that the dayworker works a 10 hour day.
[11] The unions contend that a dayworker working a 10 hour day is entitled to a 30 minute paid meal break which counts as time worked. Australian Paper contends that a dayworker working a 10 hour day is entitled to a 30 minute unpaid meal break which does not count as time worked.
The Authorities
[12] The appropriate authority on the interpretation of enterprise agreements is the Full Bench decision in AMIEU v Golden Cockerel Pty Ltd. 1
The Relevant Extracts from the Agreements
[13] Whilst the dispute centres on the table in clause 19.2 the contentions of the parties have relied on a number of other clauses and to understand the proper operation of clause 19.2 it is necessary to have regard to a number of other provisions of the Agreements. The relevant clauses are as follows:
“19. HOURS OF WORK- DAYWORKERS
19.1 The average ordinary hours of work for Dayworkers shall be thirty-five (35) hours per week at the commencement of this Agreement. On 10 April 2016, a four day/38 hour roster will be implemented where the average ordinary hours shall be thirty-eight (38) per week between 6 am and 6 pm Monday to Friday inclusive, provided that the spread of hours herein prescribed, and the meal breaks, may be altered by agreement between the parties covered by this Agreement.
19.2 35 for 38 roster profile
The Company acknowledges that under the Australian Paper (Enterprise) Agreement 2013-2015 Maryvale Mill Mechanical Maintenance & Engineering Store, the work arrangements for Dayworkers were as follows:
● 35 ordinary hours;
● RDOs and SDOs;
● Overtime payable after 35 ordinary hours.
Ordinary hours for Continuous Shiftworkers were 35 hours under a continuous shift arrangement and Continuous Shiftworkers were paid an annualised salary.
During the negotiation of this enterprise agreement, the unions covered by this Agreement and the Employees maintained that ordinary hours shall remain at 35. Australian Paper presented its unprecedented business circumstances.
To provide unprecedented cost savings to Australian Paper, to help the business be viable and sustainable, and based on a demonstrated commitment to the Company and their ongoing employment, the Employees have agreed to work 38 hours, but be paid for 35, on the basis that Dayworkers work a 4 day week. Accordingly, the parties have agreed that the Dayworkers will move onto a 38 ordinary hours/4 day per week roster and that any change to this roster for Dayworkers or Continuous Shiftworkers will require the agreement of the parties or a new replacement enterprise agreement.
The new 38 ordinary hours 4 day per week roster for Dayworkers is to commence on and from 10 April 2016. A corresponding change will apply to Continuous Shiftworkers on and from 10 April2016, as set out in Appendix E, during the operation of the Dayworkers 38 hour/4 day per week roster.
Continuous Shiftworkers
The roster profile for Continuous Shiftworkers is the roster in place at the commencement of this Agreement.
Dayworkers
At the commencement of the 38 ordinary hours 4 day per week roster on and from 10 April 2016, the thirty-eight (38) ordinary hours for Dayworkers shall be worked over a four day week in accordance with the roster profile set out below.
Start times for the commencement of Day Shift under the roster profile will be 7.00 a.m. or may be varied to between 6.00 a.m. and 7.30 a.m. as agreed by the majority of employees in the workplace or a section or sections of it.
Notwithstanding any other provision of this Agreement, a change to the 38 ordinary hours 4 day per week roster may only be made by agreement between the parties to this Agreement.
The Unions covered by this Agreement must be informed by the Company of the intention to change the roster and be given a reasonable opportunity to participate in the negotiations regarding the change.
M | T | W | T | F | S | S | M | T | W | T | F | Hrs/wk |
A | X | X | X | X | O | O | X | X | X | X | 38 hrs | |
Hrs | 8 | 10 | 10 | 10 | - | - | 10 | 10 | 10 | 8 | ||
B | O | X | X | X | X | X | X | X | X | O | ||
Hrs | - | 10 | 10 | 10 | 8 | 8 | 10 | 10 | 10 | - |
19.3 Rostered Days Off (ROO) /Special Days Off (SDO)
This clause 19.3 shall not apply to employees working the 38 ordinary hours 4
day per week roster.
Dayworkers work a 72 hour fortnight made up of nine x eight hour week days.
Employees are paid 70 hours per fortnight and two hours are accrued each fortnight towards a rostered SDO every eight weeks.
RDO
19.3.1 A major and minor roster are operated to schedule employees to take an RDO once per fortnight.
19.3.2 RDOs must be taken on the allocated day unless prior arrangements to shift the day within the same pay fortnight have been made and approved by the Company.
19.3.3 The Company may in special circumstances request an employee to shift his RDO.
SDO
19.3.4 It is intended that flexibility around SDO's will result in reduced absenteeism and will provide the Company with the flexibility to plan shuts more effectively.
Method of taking SDOs
19.3.5 Special Days Off (SDO's) shall be taken as per the roster or can be accrued.
19.3.6 Rostered SDO's will fall on Fridays.
19.3.7 When not taken as per the roster, notification shall be given to the Maintenance Superintendent with at least two clear days' notice.
19.3.8 Accrued SDOs may be taken by either:
a) Being added to annual leave, or
b) At a mutually agreed time having regard to Mill shut requirements
19.3.9 Accrued SDO's shall be applied for on a leave form and will need approval from the Maintenance Superintendent before being taken. SDO's may be approved at short notice taking into account business needs.
Recording
19.3.10 Accrual of SDOs (2 hours per fortnight) shall be recorded in hours in the payroll system and shown on the employee pay advice.
19.3.11 SDOs may be accrued for a period of no more than two years.
Payment
19.3.12 Employees shall take the hours in credit for SDOs as provided in clause 19.3.8.
SDOs in Advance
19.3.13 In order to spread the taking of SDOs throughout the year an employee may arrange to take the current years entitlement in advance, in accordance with clause 19.3.8. In such cases a debit shall be recorded as hours to be cancelled out as the SDO's taken in advance occur.
19.3.14 In no event will SDOs beyond the current years entitlement be granted.
19.3.15 Should an employee leave the Company's employment with an SDO account in debit, the outstanding amount shall be deducted from their entitlements. Alternatively, any credits will be paid out.
Part Worked Weeks
19.3.16 Where an employee has a part worked week e.g. part annual leave/part work, the appropriate deduction for SDOs will be made.
Payout of RDO/SDO upon transfer to 38 ordinary hours 4 day per week roster
19.3.17 At the commencement of the 38 ordinary hours 4 day per week roster on from 10 April 2016, the Company will pay to Employees in the first pay period after this time RDOs or SDOs accrued but untaken as at 9 April 2016.
21. OVERTIME
21.1 All parties understand that the distribution of overtime to meet both Company and employee's needs may result in some issues. As a result, a review process will be implemented which will through periodic reviews address any concerns of either party. The review panel will consist of a representative from Unions, delegates, relevant Area Managers and HR.
21.2 For immediate issues, the dispute resolution process outlined in clause 33 should be followed.
21.3 Overtime - Dayworkers
21.3.1 For all work outside the ordinary working hours, except on public holidays, authorised overtime shall be paid to a Dayworker at the rate of double time of the Overtime Hourly Rate until completion of the overtime work.
21.3.2 Provided that where a Dayworker is given notice to work overtime immediately following the normal hours, and that overtime is cancelled after the employee commences that overtime, the employee shall be paid a minimum of one hour at the Overtime Hourly Rate for that overtime.
21.4 Overtime -All Employees
21.4.1 An employee who returns after leaving the premises of the employer to work overtime when instructed to do so, or who is instructed to work overtime which except for meal-breaks is not continuous with the ordinary hours, shall be paid at the rate of double time of the Overtime Hourly Rate for a minimum of four hours.
Provided that this sub-clause shall not apply:
a) In the circumstances covered by clause 23.1.2 of this Agreement;
b) To an employee who ceases work on the day concerned without the authority of the Company; or
c) To work (of which the employee has received at least eight hours' notice) performed by an employee immediately preceding the ordinary working hours as prescribed in accordance with clauses 19 and 1.2 Appendix E of this Agreement.
Provided further that, except in the case of unforeseen circumstances arising, the employee shall not be required to work the full four hours if the work the employee was recalled to perform is completed in a shorter period.
21.5 Ten hour break
This provision is inserted in the interest of health and safety and not as an additional compensation or reward for overtime.
21.5.1 Call ins
An employee who commences work on a call in can only work for 8 hours and 1 additional hour if there is a reasonable likelihood of completing the job.
An employee who works overtime between termination of the work on one day or shift and commencement of work on the next day or shift, such that the employee has not had ten consecutive hours off duty, shall be released after completion of the work, for ten consecutive hours without loss of pay for ordinary working time.
An employee who has had a ten hour break and works overtime which commences before and extends into a normal working day is required to work 8 hours. After the completion of the 8 hours worked, the employee shall be released without loss of ordinary pay.
21.5.2 Pre-arranged Overtime
a) If overtime is arranged prior to the completion of a day or shift which is not continuous and that enables a ten hour break then:
- Employees must be sent home by the Company to take the ten hour break; and
- Employees must take the ten hour break
b) If overtime is arranged prior to the completion of a day or shift which is not continuous that does not enable a ten hour break then employees will be paid a penalty of 4 additional hours at the rate of double time of the Overtime Hourly Rate.
c) An employee who has had a ten hour break and works prearranged overtime which commences before and extends into a normal working day is required to work 8 hours. After the completion of the 8 hours worked, the employee shall be released without loss of ordinary pay.
21.5.3 Stayback
Overtime that commences at the completion of ordinary time will attract a ten hour break.
21.6 Transport
21.6.1 Where an employee works overtime which precludes the employee from using any reasonable means of transport to their home, the Company will provide a suitable conveyance. The following conditions are to apply:
21.6.2 Supervisors or their nominee must authorise the use of the taxi by ringing the switchboard.
21.6.3 Taxis are not to be provided at normal shift change times unless specifically authorised by the Supervisors or their nominee.
21.6.4 No taxis are to be provided for pre-arranged overtime.
21.6.5 Taxis will not be provided for call-ins, they will only be provided for taking people home after overtime that extends the normal day and where alternative means of transport are not available.
21.6.6 Pickup points are the Main Gate and the M4 Carpark Gate.
21.7 Notification
Provided that in the event of a break-down of a unit or plant, or other necessity to do work which could not be foreseen, the longest possible notification will be given.
21.8 Reasonable Overtime
21.8.1 Overtime shall be distributed as equitably as practicable amongst the employees.
21.8.2 The Company may require any employee to work reasonable overtime at overtime rates, and such employee shall work overtime in accordance with such requirement.
Provided further that the Company shall not require more than a reasonable amount of overtime work from any employee during weekends and on public holidays. Where overtime is required the Company would expect coverage by members of the designated work group.
21.8.3 Designated work groups will be as follows:
- Power/Recovery & Central Mechanical Workshop
- Fibrelines & Central Electrical/Instrumentation
- Paper (M1/M2, M3, M4/Waste Paper, M5, Fin/Converting) & Roll Overhaul Shop
- Garage, Engineering Store, Boilermakers, Machine Shop & Plumber are all stand alone
21.8.4 It will be expected that all overtime in these areas will meet business needs and promote ownership and teamwork.
21.8.5 Employees assigned to areas will cover overtime on tasks in those areas and not across areas. When calling for overtime, business needs to ensure area ownership must first be met
21.8.6 Should there be a requirement for transfer of labour across major areas for overtime purposes this shall be approved by the Area Supervisor/Manager.
21.9 Commitment
Employees will be required to commit to:
a) Working during week-ends and on any of the public holidays specified in clause 32 of this Agreement. There will be a 48-hour shut at Christmas time during which one other public holiday will be taken in conjunction with Christmas day (25th December). Work on these days will be of a voluntary nature.
b) That employees will co-operate to ensure that weekends and overtime work will spread over the greatest number of employees.
21.10 Christmas Work
a) For the purpose of this clause the Christmas period commences at midnight on the 24th December and ceases at midnight on the 26th December.
b) If an employee is called in to work on operating plant for Maintenance purposes on Christmas or Boxing Day then that employee is entitled to the normal call in arrangements (9 hours for the first hour) and then shall be paid double time of the Overtime Hourly Rate for the remainder of a minimum eight hour call plus the bonus payment of $128 per hour actually worked.
c) Shift Tradespersons are entitled to the bonus payment of $128.00 per hour for each hour worked within this period.
d) This does not apply to essential work on a total mill shut where normal public holiday penalties apply.
21.11 General
21.11.1 Notification will be given to provide the longest possible notice where practicable.
21.11.2 To ensure that the overtime and call-in needs of the Mill are met, prior to the Supervisor allocating such work, employees in the area will have the opportunity to allocate overtime and call in requirements through arrangements made between them. The area Supervisor will only allocate the work where the employee's proposed arrangements do not satisfy the business needs.
21.12 Call-Ins
The following applies to Call-ins:
21.12.1 An employee who returns after leaving the premises of the employer to work overtime when instructed to do so, or who is instructed to work overtime which except for meal breaks is not continuous with his ordinary hours shall be paid a minimum of 9 hours pay, at double the Overtime Hourly Rate, from the time of notification in respect of the first hour worked and double time thereafter.
21.12.2 This clause shall not apply where:
a) The circumstances covered by clause 23.1.2 of this Agreement;
b) An employee who ceases work on the day concerned without the authority of the employer, or
c) Work (of which he has received at least eight hours' notice) performed by an employee immediately preceding his ordinary working hours as prescribed in accordance with clause 19 and 1.2 Appendix E of this Agreement.
21.12.3 Such payment will be on the understanding that there will be no limitations placed upon attending to further jobs of an emergency nature whilst on the premises. However such jobs shall not comprise of general maintenance work that could reasonably be postponed until normal working hours without affecting the safety, production or plant security of the Mill.
21.13 Overtime Hours table
Paid overtime hours for hours worked in accordance with this Agreement are shown in the table below. There may be penalties incurred in circumstances other than specified below, in such cases paid overtime hours will be determined in accordance with this Agreement.
Shift | Overtime hours paid at the |
Saturday (8 hours) | 16 hours |
Saturday (12 hours) | 24 hours |
Saturday or Sunday (min 4 hours) | 8 hours |
Sunday (8 hours) | 16 hours |
Sunday (12 hours) | 24 hours |
Non Rostered Day/ROO (8 hour day) | 16 hours |
Non Rostered Day/ROO (12 hour day) | 24 hours |
Excessive Sundays | 8 hours |
Blue Friday | 8 hours |
12 Midnight to 12 Midday - shift | 24 hours |
12 Midday to 12 Midnight - shift | 24 hours |
12 Midnight to 8 am | 15 hours |
7pm to 7am - shift | 24 hours |
7am to 7pm - day work {if working 8 ordinary hour shift) | 8 hours |
7am to 7pm- day work {if working 10 ordinary hour shift) | 4 hours |
Public Holidays (8 hour day) | 12 + 8 hours |
Public Holidays (12 hour day) | 22 + 8 hours |
Stayback (max 16 hrs in one day) | Double time |
Call in | 9 hours for the first hour double thereafter |
21.14 Unplanned Overtime
An employee, who is required to work unplanned overtime, shall work in accordance with clause 21.5.1 c) and shall be released from work at the earliest opportunity without any loss of ordinary pay.
21.15 Planned Shift
An employee, who is required to work a planned shift or multiple shifts, shall not be required to attend for work prior to the commencement of that shift or multiple shifts without any loss of ordinary pay for that day.
The employee shall be entitled to a stand down after completion of the shift or multiple shifts, without loss of pay for ordinary working time for that day.
An employee is not entitled to be paid for ordinary time between multiple shifts.
23. MEAL BREAKS AND ALLOWANCES
23.1 Meal Breaks for Dayworkers
23.1.1 An employee shall not be required to work for more than five hours without a break for a meal. Provided that by agreement between the Company and the majority of employees in the plant, work section or sections concerned, an employee or employees may be required to work in excess of five hours, but not more than six at ordinary rates of pay without a meal break.
23.1.2 The time of taking a scheduled meal break or rest break by one or more employees may be altered by the Company if it is necessary to do so in order to meet a requirement for continuity of operations.
23.1.3 Except as provided in sub-clauses 23.1.1, double time at the Overtime Hourly Rate shall be paid for all work done during meal breaks and thereafter until a meal break is taken.
23.1.4 Subject to sub-clauses 23.1.1 and 23.1.5, a Dayworker required to work overtime of one and a half hours or more which is continuous with the ordinary working hours, shall be allowed a meal break of thirty minutes, either:
a) before starting such overtime, if the overtime is at the conclusion of the employee's ordinary working time; or
b) either during or at the conclusion of such overtime if the overtime is immediately before the ordinary working time and of not more than four hours duration; which shall be paid for at the rate of double time of the Overtime Hourly Rate.
c) The Company and employee may agree to change the time of taking this meal break.
23.1.5 A Dayworker working overtime (including overtime on Saturday, Sunday or Public Holiday) shall be allowed a meal break of thirty minutes without deduction of pay after each four hours of overtime worked where the overtime is to be continued after such meal break.
23.1.6 A meal break shall not be regarded as time worked for the purpose of determining when the next meal break falls due.
23.1. 7 No Meal Allowance is payable when overtime is worked as this has been included in the allowances.
23.2 Rest Day
23.2.1 The provisions of this clause shall apply only to an employee whose ordinary working hours are worked Monday to Friday and shall not apply to an employee for whom Saturday and Sunday are normal working days under any roster.
23.2.2 Subject to the provisions of sub-clause 23.2.5, any such employee required to work overtime for at least eight hours on a Saturday and at least eight hours on the Sunday immediately following shall be granted a day-off without pay (i.e. a rest day) during the immediately following week.
23.2.3 An employee shall not be required to take the rest day on any day that they would be entitled to a rest period in accordance with clause 21.5 of this Agreement.
23.2.4 If for any reason any day (Monday to Friday inclusive) in the following week is not worked by the employee, such day shall be counted as the rest day.
23.2.5 An employee required to work on the rest day shall be paid at the rate of double time of the Overtime Hourly Rate for so much of the ordinary working hours worked.
23.2.6 The employee shall be given notice of the day granted as a rest day not later than the normal ceasing time on the preceding day.
Appendix "D" Wage Classifications and Wage Rates
TRADESPERSON DAYWORKER CLASSIFICATION AND WAGE RATES 2016-2019
The Overtime Hourly Rate arises from the change from the 35 ordinary hours roster to the 38 ordinary hours roster.
So that the Employees were not disadvantaged by this change in relation to overtime, it was agreed that overtime would be paid using the weekly salary/35 hours (and not 38 hours) as the hourly rate for overtime purposes. This is the Overtime Hourly Rate set out in the table above.
TRADESPERSON CONTINUOUS SHIFT WORKER CLASSIFICATION
AND WAGE RATES 2016-2019
1. The annualised salary is based upon the 5 shift roster arrangement at the commencement of the Agreement. This means continuous shift workers work an average of 145.2 shifts of rotating 12 hours each year.
If the roster changes so that a continuous shift worker is required to work changed hours, the annualised salary will be recalculated to take into account these changed hours. Any additional hour will be calculated based upon double time at the Overtime Hourly Rate.
2. The annualised salary includes 5.5 hours per week mate cover and 40 hours of training at double the Overtime Hourly Rate.
3. Due to the rostering arrangement and the change to the 38 ordinary hours 4 days per week roster for Dayworkers on and from 10 April2016, a corresponding change to 38 ordinary hours has been made to Continuous Shiftworkers on and from 10 April 2016. The change is to be implemented so that there is no change to the shift arrangement or the annualised salary. Instead, where a Continuous Shiftworker works a non-rostered overtime shift (not mate cover or training hours) in a week, the first hour of the first overtime shift in a week will be unpaid. The remaining hours of the non-rostered overtime shift in that week will be paid as overtime at double the Overtime Hourly Rate in accordance with this Agreement.
4. The annualised salary includes all allowances including MSA, First Aid, Tool allowance, penalties, annual leave loading, over-award payments, the mate cover and training hours and payment for public holidays (worked and non-rostered day) except Christmas Day and Boxing Day.
Appendix "E" Continuous Shift Tradesperson
1.2. Ordinary hours of work
1.2.1. At the commencement of the Agreement ordinary hours of work for Continuous Shiftworkers shall not exceed thirty five (35) hours per week over a twelve month period. During the operation of the 38 ordinary hours 4 day per week roster for Dayworkers, ordinary hours of work for Continuous Shiftworkers shall not exceed thirty eight (38) hours per week over a twelve month period.
3. MEAL BREAKS
3. 1. Meal Breaks for Shift Workers
3.1.1. A shift worker shall not be required to work for more than five hours without taking a crib time. Provided that by agreement between the Company and the majority of employees in the plant, work section or sections concerned, an employee or employees may be required to work in excess of five hours but not more than six hours at ordinary rates of pay without taking a crib time.
3.1.2. Each shift of more than four hours duration shall include a crib time of thirty minutes which shall be taken so as not to interfere with the operation of the plant.
3.2. Subject to non-interference with the operation of the plant, a shift worker commencing or after completing a shift shall be entitled to a crib time either:
a) at or about the commencement of the ordinary hours after working such overtime;
or
b) at or about the commencement of such overtime after completing the ordinary hours.”
Consideration of the issue in dispute
[14] As can be seen from the above extracts from the Maintenance Agreement the Agreements contain very detailed provisions relating to hours of work, overtime and shift work.
[15] It was surprising, therefore, to find that the dispute in these matters arose because of a lack of detail in the Hours of Work clause and it became clear during the proceedings that clauses relating to overtime and meal breaks also lacked some essential details.
[16] The essence of the dispute concerns the interpretation of the table inserted into clause 19.2. I have taken into account the evidence of each of the witnesses and the detailed written and oral submissions of the parties in considering this matter. I have resisted including in this decision extracts from each of the witnesses evidence and extracts from the submissions of the parties. Rather I have focussed on presenting the decision in this matter in a form which should be readily understandable to all of the affected employees, their union representatives and the management of Australian Paper.
[17] Clause 19.2 provides for a standard start time of 7.00am (although this can be varied by agreement). The table in clause 19.2 sets out the length of each days work and pattern of work over a two week roster cycle. What was missing from both the text of clause 19.2 and the table in clause 19.2 was the finishing time of each days work.
[18] Where dayworkers work an 8 hour day there was a common understanding (within the Golden Cockerel sense) that a reference to an 8 hour day meant 8 hours of work with an unpaid meal break of 30 mins resulting in 8.5 hours at the workplace.
[19] The new element introduced by the changes to the hours of work clause was that day workers would work 10 hour days on each of 3 days in the week.
[20] Whilst there was a common understanding as to how 8 hour days were to be worked by dayworkers no such common understanding existed in relation to dayworkers working 10 hour days.
[21] The unions reached an understanding of the operation of the 10 hour day for dayworkers by having regard to a previous occasion when a 10 hour shift had been worked at the Maryvale Mill on a specific project. On that occasion the 10 hour days included a paid meal break. The unions also took into account the structure of the Overtime clause and in particular the table set out in clause 21.13.
[22] Two of the specific provisions in the table in clause 21.13 refer to day workers who are working a 12 hour day between 7 am and 7pm which comprises either an 8 hour day plus 4 hours overtime or a 10 hour day plus 2 hours of overtime. The table provides that in the case of a dayworker who works a 12 hour day between 7 am and 7pm which comprises an 8 hour day plus 4 hours overtime then the employee is paid 8 hours pay for the overtime component of the day. In the case of a dayworker who works a 12 hour day between 7 am and 7pm which comprises a 10 hour day plus 2 hours overtime then the employee is paid 4 hours pay for the overtime component of the day. In both cases the employee has to be paid either 8 or 10 hours ordinary pay in addition to the overtime pay. In both cases any meal break taken by the employee during their ordinary hours of work is a paid meal break and forms part of the ordinary hours of work.
[23] The unions took the specific provision relating to a dayworker who works a 12 hour day between 7 am and 7pm which comprises a 10 hour day plus 2 hours overtime and deconstructed the provision to conclude that the 10 hour ordinary day in the table in clause 19.2 was to include a paid meal break and that any 10 hour day would include a paid meal break.
[24] Whilst the approach adopted by the unions appeared to have some logical basis to it, it was nevertheless fundamentally flawed.
[25] Firstly, the previous use of 10 hour days for a specific project at the Maryvale Mill was in context where it was not part of the normal pattern of work and where it involved a specific shift arrangement.
[26] Secondly, the process of deconstructing the table in clause 21.13 ignored the outcome if the same deconstruction was applied to the specific provision in the case of a dayworker who works a 12 hour day between 7 am and 7pm which comprises an 8 hour day plus 4 hours overtime. Using the same deconstruction process leads to the conclusion that because the 8 hour day in the table includes a paid meal break then every 8 hour day would include a paid meal break. Such a conclusion is completely false. It was accepted by the unions and the employees that there is a common understanding at the Maryvale Mill that for dayworkers an 8 hour day means 8.5 hours at work with 8 hours of work and 30 minutes unpaid meal break.
[27] If the deconstruction process used by the unions in relation to the specific provision in the case of a dayworker who works a 12 hour day between 7 am and 7pm which comprises an 10 hour day plus 2 hours produces such an obviously wrong conclusion in relation to 8 hour dayworkers then the unions were on extremely shaky ground in relying on the conclusion they reached in relation to a dayworker working a 10 hour day.
[28] There were two common understandings as between the parties which are not reflected in the language of the Agreements. There was a common understanding that 8 hour day workers receive a 30 minute unpaid meal break which does not count as time worked. There was a common understanding that continuous shift workers received a 30 minute paid meal break which counted as time worked. Neither of these two understandings is clearly articulated in the Agreement.
[29] Clause 23 which provides for meal breaks for dayworkers does not specify the duration of the meal break during ordinary hours of work nor does it specify whether the meal break is paid or unpaid during ordinary hours of work. There are two specific mentions of a paid meal break in clause 23.1.4 and 23.1.5 and they are both in relation to a meal break during a period of overtime. Even the reference to a paid meal break in relation to overtime worked by a day worker is not clear. Clause 23.1.5 is very clear about the entitlement to a paid meal break if overtime is worked for than 4 hours. However, clause 23.1.4 is poorly drafted and the entitlement to a paid meal break is only specified in relation to the circumstance set out in clause 23.1.4(b). It is not explicit (but it may have been intended?) that a paid meal break is to be given in relation to the circumstances set out in clause 23.1.4(a)!
[30] Further there is nothing in the definition of ‘continuous shift work’ in clause 7 of the Agreement or in Appendix E – Continuous Shift Tradesperson which provides for the meal or crib break to be a paid break which counts as time worked. Clause 3.1.2 of Appendix E does provide for the duration of a crib break of 30 minutes.
[31] Whilst the structure and language of clause 23 of the Agreement and clause 3 of Appendix E to the Agreement deal with aspects of the two common understandings they in no way set out the full aspects of those two common understandings. The very purpose in identifying the existence of the common understandings is to enable an interpretation to be given to the words used in the Agreement which accords with the common understanding rather than the plain words of the Agreement. The common understandings provide a very real contextual basis for giving meaning to the words used in the Agreement. The limitation of the common understandings in this matter is that they are very specific and very limited and cannot be extended to deal with the issue in dispute about which there is no common understanding.
[32] As noted earlier the unions relied on the table in clause 21.13 to draw certain conclusions about the operation of the 10 hour days in the table in clause 19.2. During proceedings in this matter Mr Andrew Farr, the legal representative for Australia Paper during the process for the making of the Agreement gave evidence that the table in clause 21.13 was the result of a mistake made by him as the one of the drafters of the clause and that the table in clause 21.13 did not reflect what Australian Paper intended.
[33] The difficulty which flows from the evidence of Mr Farr is that the mistake was only contended for by Australian Paper. The unions contended that the amendments made to the table in clause 21.13 were consistent with the request from the unions to ensure that the table in clause 21.13 was amended to reflect the change in hours of work. The unions contended that the table in clause 21.13 was not a mistake.
[34] If Australian Paper agreed to the Agreement with a mistake in the table in clause 21.13 the Agreement still operates according to its terms.
[35] Australian Paper does not contend that the mistake they made in relation to the content of the table in clause 21.13 gives rise to an ambiguity or uncertainty.
[36] In fact the structure and language of clause 21.13 is remarkably clear. The opening words of clause 21.13 are very specific:
“Paid overtime hours for hours worked in accordance with this Agreement are shown in the table below. There may be penalties incurred in circumstances other than specified below, in such cases paid overtime hours will be determined in accordance with this Agreement.”
[37] The opening words provide for two specific approaches to the payment of overtime. Firstly, if a circumstance is mentioned in the table attached to clause 21.13 then overtime is paid in accordance with the table and not with any other provision of the Agreement. Secondly, if a circumstance is not mentioned in the table attached to clause 21.13 then overtime is paid in accordance with the general provisions of the Agreement and not in accordance with the table in clause 21.13.
[38] The very specificity of the table in clause 21.13 means that it must operate in preference to any common understanding that might otherwise apply in relation to hours of work and meal breaks.
[39] The common understanding of the parties is that a day worker working an 8 hour day attends work for 8.5 hours of which 8 hours are work time and 30 minutes is an unpaid meal break. However, the table in clause 21.13 makes it very clear that where a dayworker works 12 hours from 7am to 7pm then the day worker will be paid for 8 ordinary hours and will be paid an additional 8 hours pay for the overtime. The structure of the table implies, but does not explicitly state, that any and all breaks taken by an employee working a 12 hour day as set out will be paid breaks. I make the observation that it does not matter how Australian Paper process this arrangement through the time and wages records, rather what matters is Australian Paper must provide 8 hours of ordinary pay plus 8 hours pay for the overtime. It would appear that this arrangement could be processed by Australian Paper in either of two ways. The first would be to treat the two required meal breaks as paid meal breaks which count as time worked. The second, would be to treat the meal breaks as unpaid meal breaks in which case the employee would only be working overtime for 3 hours but would be paid 8 hours pay for that overtime.
[40] As the table in clause 21.13 does not deal with the circumstance of a dayworker who works an 11 hour day from 7am to 6pm then both the common understanding as to how an 8 hour day is worked and the normal overtime provisions of the Agreement would apply. The result is that the 8 ordinary hours would be worked from 7am to 3.30pm with an unpaid 30 minute meal break during that time (the common understanding) and overtime would commence at 3.30pm and conclude at 6pm and include a paid meal break of 30 minutes (as per clause 23.1.4).
[41] The contrast between the two above examples involving an 8 hour dayworker show that the table in clause 21.13 has a very specific operation and that elements which comprise the operation of that table cannot be applied to circumstances which are not set out in the table.
[42] The fact that the table in clause 21.13 provides a specific situation in relation to a dayworker who works a 12 hour day comprising a 10 ordinary hour day and with 2 hours overtime in which case all meal breaks are paid breaks and are counted as time worked, does not permit any conclusions to be drawn about how a 10 hour ordinary day will be worked when no overtime is involved or when overtime is worked which is less than or more than 2 hours.
[43] Having considered, and properly discarded, clause 21.13 as an aid to the interpretation of the table in clause 19.2 it is necessary to turn to clause 19 and carefully consider that clause.
[44] The significance of the changes made to clause 19 of the 2013 Agreement to create clause 19 of the current Agreement cannot be understated.
[45] Clauses 19.1, 19.2 and beginning of clause 19.3 of the 2013 Agreement are as follows:
“19. HOURS OF WORK- DAYWORKERS
19.1 The average ordinary hours of work for day workers shall be thirty-five per week between 6 am and 6 pm Monday to Friday inclusive, provided that the spread of hours herein prescribed, and the meal breaks, may be altered by agreement between the parties.
19.2 The thirty-five average ordinary hours per week for day workers will be fixed in each workplace by agreement between the parties and may be determined in accordance with a roster arrangement that provides for the average of thirty-five hours to be calculated over an eight week period.
19.3 Rostered Days Off (RDO) / Special Days Off (SDO)
Day work employees work a 72 hour fortnight made up of nine eight hour week days.
Employees are paid 70 hours per fortnight and two hours are accrued each fortnight towards a rostered SDO every eight weeks.”
[46] When compared with clauses 19.1, 19.2 and 19.3 of the current Agreement the changes made are very significant.
[47] What stands out in the wording of clauses 19.1 and 19.2 of the current Agreement is that reference to 38 hours is clearly to 38 hours of work just as the reference to 35 hours in the 2013 Agreement was to 35 hours of work.
[48] Clause 19.1 provides that as from 10 April 2016 “the average ordinary hours shall be thirty-eight (38) per week between 6 am and 6 pm Monday to Friday inclusive”. Clause 19.2 provides that “employees have agreed to work 38 hours”
[49] Whilst the language of clauses 19.1 and 19.2 refer to a move from 35 hours to 38 hours it is tolerably clear that the purpose of the clauses is to reflect an agreement that employees would work an additional 3 hours each week as part of their ordinary hours of work.
[50] Given the common understanding that dayworkers who worked an 8 hour day would attend work for 8.5 hours of which 30 minutes was an unpaid meal break which did not count as time worked the only reasonable way in which the dayworkers could work 38 ordinary hours on a 4 day week roster would be for the actual working hours to be increased by 3 hours per week.
[51] The table in clause 19.2 provides that the 4 day week for dayworkers would comprise one 8 hour day and three 10 hour days. The logic of moving from a 35 hour week to a 38 hour week suggests that on each day worked the dayworkers would have a 30 minute unpaid meal break which did not count as time worked and that on the day in which the dayworkers worked 8 hours they would be in attendance at the workplace for 8.5 hours and that on the days that the dayworkers worked a 10 hour day they would be in attendance at the workplace for 10.5 hours.
[52] The position contended for by the unions in moving from a 35 hour week to a 38 hour week is that on each 8 hour day worked the dayworkers would have a 30 minute unpaid meal break which did not count as time worked and that on those days the dayworker would be in attendance at the workplace for 8.5 hours but that on the days that the dayworkers worked a 10 hour day they would only be in attendance at the workplace for 10 hours. The position contended for by the unions doesn’t logically flow from any reading of clause 19.1 and 19.2. The position contended for by the unions does not have the dayworkers working an extra 3 hours. Rather the interpretation adopted by the unions is that whilst agreeing to work 38 ordinary hours for 35 ordinary hours pay the dayworkers would only work 36.5 ordinary hours for 35 hours pay.
[53] The outcome contended for by the unions is inconsistent with the purpose of the agreement in having dayworkers work 38 ordinary hours of work for 35 ordinary hours of pay. Or expressed differently, the outcome contended for by the unions is inconsistent with the purpose of the agreement in having dayworkers work an extra 3 ordinary hours per week.
[54] Properly understood the roster in the table in clause 19.2 requires a dayworker to work the number of hours mentioned (either 8 or 10) exclusive of any meal break.
[55] Whilst the Agreement does not specifically provide for an unpaid 30 minute meal break during a dayworkers ordinary hours the common understanding provides for an unpaid meal break of 30 minutes on those days in the roster where the dayworker is required to work 8 ordinary hours. Clause 23.1.1 requires that a dayworker who works a 10 ordinary hour day must be given a meal break after 5 hours (or by agreement not later than 6 hours). The length of any meal break taken by dayworkers on the days that they are required by the roster to work 10 ordinary hours should, if possible, be determined by agreement with the employees. I also note that while clause 23.1.1 provides for the timing of the taking of a meal break it is clear from clause 44 that an individual flexibility arrangement may be entered into between an employee and Australian Paper in relation to the time for taking of meal breaks. Given that both the length of any meal break and the time of taking of a meal break by a dayworker working a 10 day is not set in concrete it is appropriate that I permit the parties to try and reach an agreement on these matters.
[56] In the absence of any agreement as to the length of a meal break for dayworkers working the 10 hour days in accordance with the roster in clause 19.2 the Commission will determine the matter after hearing from the parties as well as determining any residual matters that may need to be resolved after the parties consider the implementation of this interim decision.
COMMISSIONER
Appearances:
B. Terzic of the AMWU for the AMWU, CEPU and NUW
C. Mooney for Paper Australia Pty Ltd.
Hearing details:
2016.
Melbourne:
July 4, 5.
1 [2014] FWCFB 7447.
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