"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Simplot Australia Pty Limited
[2018] FWC 3718
•25 JUNE 2018
| [2018] FWC 3718 [Note: An appeal pursuant to s.604 (C2018/3878) was lodged against this decision.] |
| 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
Simplot Australia Pty Limited
(C2017/1991)
| COMMISSIONER SAUNDERS | NEWCASTLE, 25 JUNE 2018 |
Dispute about matters arising under an enterprise agreement – proper construction of the enterprise agreement.
The AMWU and Simplot Australia Pty Limited (Simplot) are in dispute about whether the AMWU, CEPU and Simplot Australia Limited National Collective Agreement 2014-2017 (2014 Agreement) requires Simplot to pay a food processing employee at Simplot’s Ulverstone plant (Food Employee) who, in accordance with their ordinary rotating roster cycle, is not rostered to work, and does not work, on Easter Saturday (Dispute).
On 13 April 2017, the AMWU filed an application pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission) for the Commission to deal with the Dispute (Application). At first instance, it was determined by Deputy President Dean that the 2014 Agreement did not require Simplot to make a payment to a Food Employee who was not rostered to work, and did not work, on Easter Saturday.[1] On appeal, a Full Bench of the Commission upheld the AMWU’s appeal against the decision at first instance, quashed that decision, and remitted the hearing of the Dispute to me.[2]
In determining the outcome of the Dispute, I have had regard to the evidence adduced and submissions made at first instance, the submissions made to the Full Bench (of which I was a member) on appeal concerning the proper construction of the 2014 Agreement, and the additional evidence adduced and submissions made in connection with the rehearing on 29 May 2018.
Agreed Facts
The parties filed an Agreed Statement of Facts when the Dispute was originally heard and determined by Deputy President Dean. At the rehearing the parties filed a slightly revised version of the Agreed Statement of Facts,[3] in the following terms:[4]
“Background
1. Simplot is a major Australian Food Manufacturer, with sites in every state. Relevantly, Simplot operates a potato processing plant in Ulverstone, Tasmania.
2. The dispute relates to food processing employees at the Ulverstone plant (the Food Employees).
3. The AMWU, CEPU and Simplot Australia Pty Ltd National Collective Agreement 2014-2017 (the Agreement) applies to Simplot and the Food Employees, and covers the AMWU.
4. The AMWU is eligible to represent the industrial interests of, and has members among, the Food Employees.
The Dispute
5. Food Employees currently work 38 ordinary hours a week, averaged over a twenty-four week cycle.
6. Weekly wages for a Food Employee consists of:
a. 38 ordinary hours paid at the employee’s base rate per appendix 6 of the Agreement (the Base Rate); and
b. An averaged penalty payment reflecting shift penalties and rostered overtime (the Averaged Penalty Payment).
7. Where hourly payments are needed (for example, part-day sick leave), these payments are calculated based on an hourly rate inclusive of the Food Employee’s base rate and the Averaged Penalty Payment (the Roster Rate).
8. The exception to this is overtime, which is calculated on a Food Employee’s Base Rate.
9. Food Employees are required to work their ordinary hours in accordance with a 24/7 rotating roster cycle set by Simplot. From time to time, the roster cycle requires workers to perform their ordinary hours of
includeswork on Saturdays and Sundays.10. On Easter Saturday:
a. a Food Employee who, because of the ordinary roster cycle, is not rostered to work, and does not work, does not receive any payment, and
b. a Food Employee who would, because of the ordinary roster cycle, be rostered to work but who is directed by Simplot not to work, and does not work on that day, receives their ordinary payment for that rostered shift from Simplot.
11. On other public holidays:
a. a Food Employee who, because of the ordinary roster cycle, is not rostered to work, and does not work, is paid for 7.6 hours work, and
b. a Food Employee who would, because of the ordinary roster cycle, be rostered to work but who is directed by Simplot not to work, and does not work on that day, receives their ordinary payment for that rostered shift from Simplot.”
Full Bench Decision
The Full Bench described the relevant background to the Dispute as follows:
“[4] The dispute concerns the application of clause 34.1(c) to ‘Food Employees’ who work at the Simplot potato processing plant in Ulverstone in Tasmania. It is common ground that the Food Employees at the Ulverstone site operate under a 24/7, 12 hour shift rotating roster, across every day of the week and at various shift times. The relevant employees are paid a ‘roster rate’ such that whatever shift pattern they work they receive the same payment each week. If they are not rostered to work on a public holiday they receive an additional 7.6 hours pay, at their ‘Roster Rate’. The only exception to this arrangement is in respect of Easter Saturday.
…
[7] In the proceedings at first instance the parties filed an ‘Agreed Statement of Facts’(Exhibit 1), in the following terms…
[8] The AMWU also tendered a redacted pay slip (Exhibit 2), as follows…
[9] It is common ground that at present the Ulverstone Food Employees who are not rostered to work and do not work on public holidays are paid 7.6 hours pay at their ordinary time rate for all public holidays other than Easter Saturday and are not paid at all for Easter Saturday.
[10] There was no evidence tendered in the proceedings at first instance in relation to the ‘objective background facts’ (as mentioned in paragraphs [11] and [12] of the Berri principles; see paragraph [20] of this decision).
[11] As mentioned earlier, the term at the centre of the dispute is clause 34.1 of the Simplot Agreement:
‘34.1 Food Employees
a) The following days shall be public holidays for food employees (other than casuals) for the purposes of this Agreement:
i. New Year’s Day;
ii. Anniversary or Foundation Day;
iii. Good Friday;
iv. Easter Saturday;
v. Easter Monday;
vi. Anzac Day;
vii. Labour Day;
viii. Queen’s Birthday;
ix. Christmas Day;
x. Boxing Day;
xi. Union Picnic Day to be observed during the period 1 June to 15 November or at an alternative date agreed between the parties to this Agreement;
xii. August Bank Holiday which is the first Monday in August (in New South Wales);
xiii. Regatta Day (in Southern Tasmania only);
xiv. Recreation Day (in Northern Tasmania only); and
b) Where any other day is generally declared or prescribed by or under a State law to be observed generally within the State, or a region of a State, as a substitute for or in addition to any of the above days, then that day shall be observed as the public holiday in lieu of the prescribed day.
c) Payment for public holidays not worked
Employees (other than casuals) who are not required to work on public holidays during all or some of the hours which on any other day would have been their ordinary hours, shall be paid for such ordinary hours not worked at ordinary time plus where appropriate, the relevant shift penalties.’
[12] Clause 6 is also relevant, it deals with the interaction between the terms of the Simplot Agreement and the terms of the Food, Beverage and Tobacco Manufacturing Award 2010 (the FBTM Award) and the Manufacturing and Associated Industries and Occupations Award 2010:
‘6. RELATIONSHIP TO AWARDS
6.1 The Food, Beverage and Tobacco Manufacturing Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010 are incorporated in this Agreement with the exception of the following clauses:
a) Food, Beverage and Tobacco Manufacturing Award 2010
i. Clause 7 – Award flexibility;
ii. Clause 8 – Facilitative provisions;
iii. Clause 13.4 – Casual conversion to full-time or part-time employment;
iv. Clause 19 – Redundancy;
v. Clause 21 – Apprentice minimum wages;
vi. Clause 22 – Adult Apprentice minimum wages;
vii. Clause 24 – Unapprenticed junior minimum wages;
viii. Clause 27 – Extra rates not cumulative;
ix. Clause 29.4 – Superannuation fund;
x. Clauses 30.1 to 30.5; xi. Clause 31 – Special provisions for shift workers; and
xii. Clauses 33.1, 33.6, 33.7, 33.8, 33.9 and 33.10.
b) Manufacturing and Associated Industries and Occupations Award 2010
i. Clause 7 – Award flexibility;
ii. Clause 8 – Facilitative provisions;
iii. Clause 23 – Redundancy;
iv. Clause 29 – Unapprenticed junior minimum wages; and
v. Clause 35.4 – Superannuation fund.’
[13] In the context of this particular dispute clause 37.3 of the FBTM Award is also relevant, it provides:
‘37.3 Rostered day off falling on public holiday
(a) Except as provided for in clauses 37.3(b) and (c) and where the rostered day off falls on a Saturday or a Sunday, where a full-time employee’s ordinary hours of work are structured to include a day off and such day off falls on a public holiday, the employee is entitled, at the discretion of the employer, to either:
(i) 7.6 hours of pay at the ordinary time rate; or
(ii) 7.6 hours of extra annual leave; or
(iii) a substitute day off on an alternative week day.
(b) Where an employee has credited time accumulated pursuant to clause 28.6, then such credited time should not be taken as a day off on a public holiday.”
The Full Bench reasoned as follows in relation to its decision to uphold the appeal against the decision at first instance:
“[22] As we have mentioned clause 6.1 of the Simplot Agreement incorporates, relevantly, certain clauses from the FBTM Award, including clause 37.3 from that award. Clause 6.2 of the Simplot Agreement deals with the interaction between the terms of the agreement and the incorporated FBTM Award terms:
‘To the extent that there is any inconsistency between this Agreement and the Awards, then the provisions of this Agreement must apply. Where this Agreement is silent, then the relevant Award must apply. Where this Agreement is silent and the relevant Awards differ on conditions, the relevant parties covered by this Agreement will resolve the issues in accordance with the provisions of this Agreement, including the dispute resolution provisions at Clause 44, Dispute Resolution.’
[23] Relevantly, in the event of ‘any inconsistency’ between an agreement term and an award term, the agreement term prevails. An incorporated award term only applies in circumstances where the Simplot Agreement is ‘silent’.
[24] It is common ground that if clause 37.3 of the FBTM Award does apply then the AMWU’s contention that the relevant employees are entitled to receive 7.6 hours pay for Easter Saturday, must be rejected.
[25] In order for clause 37.3 of the FBTM Award to have any application to the resolution of the dispute the Simplot Agreement must be ‘silent’ on the relevant question.
[26] It seems to us that the Deputy President erred in her approach to the interaction of the agreement terms and the incorporated FBTM Award terms. At [48] of the Decision the Deputy President correctly sets out how the interaction rules in clause 6.2 operate, but then says, at [52]:
‘Clause 37.3(a) of the FBT Award applies to the circumstances of the current dispute. This clause is incorporated into the Agreement. It ought to be given some work to do.’ [Emphasis added]
[27] It appears that the Deputy President proceeded on the basis that because clause 37.3(a) of the FBTM Award is incorporated into the Simplot Agreement (by virtue of clause 6.1) it ‘ought to be given some work to do’.
[28] As a general proposition it would be correct to say that in interpreting an instrument (be it a statue or an enterprise agreement) one should strive to give meaning and effect to each of its terms. We are not at liberty to consider any word or sentence as superfluous or insignificant. All words must prima facie be given some meaning and effect. But in the context of the present matter that general approach must give way to the clear terms of clause 6.2, that is, an incorporated award term only applies if the Simplot Agreement is ‘silent’ on the issue. Importantly, the incorporated award terms have no work to do unless the agreement is silent on the issue.
[29] As set out earlier, clause 34.1(c) provides:
‘c) Payment for public holidays not worked
Employees (other than casuals) who are not required to work on public holidays during all or some of the hours which on any other day would have been their ordinary hours, shall be paid for such ordinary hours not worked at ordinary time plus where appropriate, the relevant shift penalties.’
[30] The subclause heading makes clear that the provision is intended to cover the circumstances in which payment is to be made ‘for public holidays not worked’. The issue in dispute turns on the meaning of the expression ‘not required to work on public holidays during all or some of the hours which on any other day would have been their ordinary hours’, and, in particular, on the meaning of the underlined words.
[31] The ‘ordinary hours’ of Ulverstone Food employees is not in contention – they are set out in Appendix 4: Ulverstone Site – Specific Provisions to the Simplot Agreement.
[32] We note that the AMWU’s submissions focus on the words ‘not required to work on public holidays’. If clause 34.1(c) omitted the underlined words there would be considerable force in the AMWU’s contention that the Ulverstone Food employees are entitled to 7.6 hours pay for when they are not rostered to work (and do not work) on Easter Saturday. This would be so because, as the AMWU contends, giving these words their ordinary meaning, the expression would encompass the circumstance where an employee is not rostered to work and is not otherwise directed to attend work.
[33] But the other words in clause 34.1(c) – ‘during all or some of the hours which on any other day would have been their ordinary hours’ – must have some work to do. Discerning the meaning of these words is not without difficulty. It seems to us that there are at least two arguable interpretations.
[34] First, if the words ‘which on any other day’ are interpreted to mean ‘but for the public holiday’, then an entitlement to payment would only arise if the employee would have been rostered to work on the day but, because it was a public holiday, Simplot did not require them to work. Hence, an employee would be entitled to payment under clause 34.1(c) if the employee, according to their regular roster, would have been rostered to work on Easter Saturday this year but Simplot did not roster or require them to work on that day because it is Easter Saturday (e.g. the employee works every second Saturday according to their roster and Easter Saturday falls this year on their ‘working’ Saturday, but Simplot does not roster or require them to work on that day because it is Easter Saturday).
[35] However such a construction has implications beyond the current dispute. It would mean that if any public holiday fell on a day which was an employee’s RDO according to their roster cycle then they would not be entitled to any payment under clause 34.1(c).
[36] As we have mentioned, it is common ground that the Ulverstone Food Employees who are not rostered to work and do not work on public holidays are paid 7.6 hours pay at their ordinary time rate for all public holidays other than Easter Saturday. As mentioned in Berri, post-agreement conduct may be relevant to the interpretation of an industrial instrument. The post-agreement conduct in the present matter may tell against the first arguable interpretation of clause 34.1(c).
[37] The second arguable interpretation is the one advanced by the AMWU.
[38] The AMWU contends that the reference to ‘any other day’ in clause 34.1(c) is a reference to any day on which the employee could be directed to work. Counsel for the AMWU submitted that clause 34.1(c):
‘…is a provision that is absolutely directed in ensuring workers covered by this entitlement get either to take a day off work with pay, or get a day’s pay for every single public holiday in the year that they could potentially have worked’
[39] In support of the above proposition Counsel relied on the public holiday payment provisions in the pre reform Food Preservers Award. It is common ground that clause 34.1(c) was informed by the terms of that award, though it does not replicate all of the award provisions.
[40] Contrary to the view expressed by the Deputy President (at [46] of the Decision) we are satisfied that clause 34.1(c) is ambiguous, in the sense that it is susceptible of more than one meaning. In such circumstances it would be appropriate to admit any evidence adduced of the surrounding circumstances as an aid to the interpretation of the term. The difficulty in the present matter is that there is no such evidence before us and it would be appropriate to give the parties an opportunity to decide whether or not to adduce such evidence.
[41] In the circumstances we propose to grant permission to appeal, uphold the appeal and quash the Deputy President’s Decision. We adopt this course on the basis of the Deputy President’s erroneous findings as to ambiguity in relation to clause 34.1(c) and the application of clause 37.3(a) of the FBTM Award, particularly the conclusion that it ‘ought to be given some work to do’, without having first established whether the Simplot Agreement was silent for the purposes of clause 6.2.
[42] Given the limited nature of the material before us, in terms of the evidence to establish the relevant objective background facts, we will remit the rehearing of the dispute to Commissioner Saunders.”
Additional evidence in rehearing
The AMWU adduced additional evidence at the rehearing; Simplot did not. I have concluded that the additional evidence adduced by the AMWU at the rehearing does not assist in the interpretation of the relevant provisions of the 2014 Agreement. My reasons for reaching that conclusion are set out in paragraphs [36] to [49] below.
Proper construction of the 2014 Agreement
There is no dispute about the principles which are applicable to the task of properly construing the 2014 Agreement; they were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd[5] and were repeated in the Full Bench Decision at paragraph [20].
For the reasons stated in paragraphs [33] to [40] of the Full Bench Decision, clause 34.1(c) of the 2014 Agreement is ambiguous, in the sense that it is susceptible of more than one meaning. The Full Bench observed that there are at least two arguable interpretations of clause 34.1(c) of the 2014 Agreement, including the following:
First arguable interpretation
If the words ‘which on any other day’ are interpreted to mean ‘but for the public holiday’, then an entitlement to payment would only arise if the employee would have been rostered to work on the day but, because it was a public holiday, Simplot did not require them to work. Hence, an employee would be entitled to payment under clause 34.1(c) if the employee, according to their regular roster, would have been rostered to work on Easter Saturday this year but Simplot did not roster or require them to work on that day because it is Easter Saturday (e.g. the employee works every second Saturday according to their roster and Easter Saturday falls this year on their ‘working’ Saturday, but Simplot does not roster or require them to work on that day because it is Easter Saturday); and
Second arguable interpretation
The AMWU contends that the reference to ‘any other day’ in clause 34.1(c) is a reference to any day on which the employee could be directed to work. Counsel for the AMWU submitted that clause 34.1(c):
“…is a provision that is absolutely directed in ensuring workers covered by this entitlement get either to take a day off work with pay, or get a day’s pay for every single public holiday in the year that they could potentially have worked”
Neither party advanced another arguable interpretation of clause 34.1(c) in the rehearing.
In my view, the following three textual indicators in clause 34.1(c) of the 2014 Agreement tell in favour of the first arguable interpretation and against the second arguable interpretation set out above:
(a)First, while I agree with the AMWU’s submission that the expression “any other day” is broad, it must be construed in context. The words “would have been their ordinary hours” follow immediately after the reference to “any other day” in clause 34.1(c). Although a Food Employee could be directed to work on any day of the week in accordance with the 24/7 rotating roster cycle, clause 34.1(c) calls for an assessment of what “would have been their ordinary hours”, not, as contended for by the AMWU, what could have been their ordinary hours [emphasis added].[6] But to undertake such an assessment it is necessary to understand when or in what circumstances it “would have been their ordinary hours”. The circumstance with which clause 34.1(c) is concerned is an employee who is “not required to work on [a] public holiday”. When this context is combined with the expression “which on any other day would have been their ordinary hours”, it is apparent, in my view, that the clause calls for an assessment of what would have been the employee’s ordinary hours of work on the public holiday in question had it been “any other day” (i.e. not a public holiday);
(b)Secondly, clause 34.1(c) requires that an employee “be paid for such ordinary hours not worked”. It is not possible to work out how many ordinary hours an employee has “not worked” unless attention is focused on the particular public holiday in question and an inquiry is undertaken concerning how many ordinary hours the employee would have worked had it not been a public holiday on that day. For some employees, such as part time employees, the number of hours they may be rostered to work may vary significantly from one day to the next. For example, a part time employee’s usual roster may have them working four hours on one day and 10 hours on another day. Absent an examination of the employee’s ordinary roster to determine how many ordinary hours they would have worked on the public holiday in question had it not been a public holiday, it would not be possible to determine how much the employee should be paid for that day; and
(c)Thirdly, clause 34.1(c) requires an employee to be paid “at ordinary time plus where appropriate, the relevant shift penalties”. Shift penalties apply for Food Employees who work afternoon shift (15%) or night shift (30%).[7] Accordingly, it is necessary to have regard to a Food Employee’s ordinary rotating roster cycle to determine when the Food Employee would have worked ordinary hours on the public holiday in question (had it not been a public holiday), so that a calculation can be made of the shift penalties, if any, payable to the Food Employee under clause 34.1(c) of the 2014 Agreement.
The relevant provisions of the 2014 Agreement must be construed in context. As explained by Justice Burchett in Short v FW Hercus Pty Ltd,[8] context extends well beyond the words of the particular provisions:
“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.”
It is common ground that clause 34.1(c) of the 2014 Agreement was informed by the terms of the Food Preservers’ Award 2000 (FP Award), though the 2014 Agreement does not replicate all of the FP Award provisions.[9]
The way in which the relevant provisions evolved from 2008 through to the 2014 Agreement is as follows: the 2014 Agreement replaced the AMWU and Simplot Australia Pty Limited National Collective Agreement 2011-2014 (2011 Agreement); the 2011 Agreement replaced the Simplot Australia Pty Limited (National Framework) Agreement 2008 (2008 Agreement); the 2008 Agreement was silent in relation to public holidays at the Ulverstone site and relied exclusively on the terms of the FP Award 2000, which were incorporated into the 2008 Agreement, to deal with Ulverstone site employees’ entitlements to payment on public holidays.
Clause 31.6 of the FP Award, which is in Part 7 – Leave of absence and public holidays, provides as follows:
“31.6 Payment for public holidays
31.6.1Subject to the provisions of this clause, employees (other than casuals) who are not required to work on any of such public holidays during all or some of the hours which on any other day would have been their ordinary hours, shall be paid for such ordinary hours not worked (or not paid for under 21.8 and 26.8 of this award) at ordinary time plus (where appropriate) the shift allowance of 15% or 30% thereof prescribed for afternoon and night shift workers, as the case may be.
31.6.2This subclause shall only apply to public holidays observed on days which would otherwise have been ordinary working days.”
The FP Award also addresses the question of payment for public holidays on which no work is undertaken in clause 21.7, which is in Part 6 – Hours of work, breaks, overtime, shift work, weekend work. Clause 21.7 of the FP Award provides that:
“21.7 Rostered day off falling on a public holiday
21.7.1An employee who works continuous work and who by the circumstances of the arrangement of the employee’s ordinary hours of work is entitled to a rostered day off which falls on a public holiday prescribed by this clause shall, at the discretion of the employer, be paid for that day at 7 hours 36 minutes at ordinary rates or have an additional day added to the employee’s annual leave. This provision shall not apply when the public holiday on which the employee is rostered off falls on a Saturday or Sunday.”
Clause 21.7 of the FP Award clearly addresses an employee’s right to payment on a public holiday on which the employee does not work because the employee is entitled to a rostered day off on the public holiday. In those circumstances, the employee is entitled, at the employer’s discretion, to be paid for that day. There is, however, an exception, in that the clause does not apply when the public holiday in question falls on a Saturday or Sunday.
In contrast, clause 31.6 of the FP Award addresses an employee’s right to payment on a public holiday on which the employee is not required to work “during … hours which on any other day would have been their ordinary hours”.
In determining whether an employee who was not required to work on a public holiday had an entitlement to payment under the FP Award in respect of that day it was first necessary to determine whether the public holiday in question was (a) a rostered day off or (b) an ordinary working day for the employee. If the public holiday was a rostered day off for the employee, then under the FP Award the employee was entitled, at the discretion of the employer, to payment for the public holiday if it fell on a Monday to Friday, but not if it fell on a Saturday or Sunday. If the public holiday was not a rostered day off and would otherwise have been an ordinary working day for the employee, then under clause 31.6 of the FP Award the employee was entitled to payment for the public holiday.
Unlike the 2008 Agreement, the 2011 Agreement does not rely on the terms of the FP Award to deal with a Food Employee’s entitlement to payment on public holidays. By the time the 2011 Agreement was made, there was a new modern award – the Food, Beverage and Tobacco Manufacturing Award 2010 (FBTM Award) – in operation. The 2011 Agreement incorporates clause 37.3 of the FBTM Award, which is in similar terms to clause 21.7 of the FP Award and provides as follows:
“37.3 Rostered day off falling on public holiday
(a) Except as provided for in clauses 37.3(b) and (c) and where the rostered day off falls on a Saturday or a Sunday, where a full-time employee’s ordinary hours of work are structured to include a day off and such day off falls on a public holiday, the employee is entitled, at the discretion of the employer, to either:
(i) 7.6 hours of pay at the ordinary time rate; or
(ii) 7.6 hours of extra annual leave; or
(iii) a substitute day off on an alternative week day.
(b) Where an employee has credited time accumulated pursuant to clause 28.6, then such credited time should not be taken as a day off on a public holiday.”
The 2011 Agreement also includes clause 35.1(c) (in the same terms as clause 34.1(c) of the 2014 Agreement), which is in similar terms to clause 31.6.1 of the FP Award. The 2011 Agreement is in all other material respects in the same terms as the 2014 Agreement in relation to payments for employees who do not work on a public holiday. In particular, clauses 7.1 and 7.2 of the 2011 Agreement (relationship to awards) are in the same terms as clauses 6.1 and 6.2 of the 2014 Agreement and both the 2011 Agreement and the 2014 Agreement incorporate clause 37.3 of the FBTM Award.
It is apparent from the foregoing summary of the history of the relevant provisions in the 2014 Agreement that the makers of the 2011 Agreement and the 2014 Agreement sought to keep the same distinction established in the FP Award between (a) public holidays on which an employee does not work because they are rostered off[10] and (b) public holidays on which an employee would ordinarily have been rostered to work but is not required to work because it is a public holiday,[11] albeit in the 2011 Agreement and the 2014 Agreement clause 37.3 of the FBTM Award only applies if clause 34.1(c)[12] is silent. The context referred to above supports the conclusion that the expression “not required to work on public holidays during all or some of the hours which on any other day would have been their ordinary hours” in clause 34.1(c) of the 2014 Agreement should be construed in accordance with the first arguable interpretation set out in paragraph [9] above.
In addition, the AMWU’s argument that clause 34.1(c) of the 2014 Agreement covers the field and requires that a payment of 7.6 hours’ pay, at the employee’s base rate of pay, be made to an employee not required to work on Easter Saturday, regardless of whether the reason the employee did not work on that day was because it was a rostered day off or because the employer elected not to require the employee to work their usual rostered hours because it was a public holiday on that day, is difficult to reconcile with the fact that:
clause 31.6.1 of the FP Award (which is in materially similar terms to clause 34.1(c) of the 2014 Agreement) governed an employee’s right to payment on a public holiday which otherwise would have been an ordinary working day. Clause 31.6.1 of the FP Award required payment to the employee for “such ordinary hours not worked”, which could be 12 hours for a shiftworker, plus any applicable shift allowances; but
a different provision of the FP Award, namely clause 21.7.1 (which is in materially similar terms to clause 37.3 of the FBTM Award – incorporated into the 2014 Agreement), governed an employee’s right to payment on a rostered day off falling on a public holiday. Clause 21.7.1 required payment to the employee of 7.6 hours’ pay at ordinary rates.
The AMWU submits that some caution should be exercised in placing too much weight on the terms of the FP Award 2000, because there is no suggestion that a copy of that award was provided to employees and, even if the FP Award is relevant, the failure to replicate the relevant limitation at clause 31.6.2 in the 2011 Agreement or the 2014 Agreement further supports the AMWU’s interpretation.
That the FP Award was not provided to Food Employees is not, in my view, significant. In circumstances where it is accepted that clause 34.1(c) of the 2014 Agreement was informed by the terms of the FP Award,[13] the terms of that award and the history of the relevant provisions in the 2008 Agreement, the 2011 Agreement and then the 2014 Agreement form part of the context in which the relevant provisions of the 2014 Agreement must be construed. There is no suggestion that the makers of the 2011 Agreement or the 2014 Agreement had an actual “meeting of the minds” in relation to the meaning of the relevant provisions. The question is how a reasonable person with knowledge of the relevant objective background facts would construe the language of the 2014 Agreement having regard to its context and purpose.[14]
I do not accept the AMWU’s submission that clause 31.6.2 is a limitation or exception to clause 31.6.1 of the FP Award. In my view, clause 31.6.2 of the FP Award is in the nature of an avoidance of doubt provision. Its purpose is to remove any doubt that clause 31.6.1 of the FP Award is concerned with a public holiday which would otherwise have been an ordinary working day for an employee. So much is clear from the reference in clause 31.6.1 to “public holidays … which on any other day would have been … ordinary hours”. It follows that the omission of an avoidance of doubt provision in the same or similar terms to clause 31.6.2 from the 2011 Agreement and the 2014 Agreement is not a significant indicator of an objective intention to expand the operation of clause 34.1(c) of the 2014 Agreement to cover any other day on which an employee could be directed to work.
Construing clause 34.1(c) of the 2014 Agreement in context also requires consideration of other relevant provisions of the 2014 Agreement. Clause 9.1 of the 2014 Agreement provides that “no provision of the NES is displaced by this Agreement, but the NES provisions may be supplemented by the terms of this Agreement”. Clause 34.1(c) supplements the NES entitlement to payment for absences on public holidays (s.116 of the Act, which only applies where the employee would have had ordinary hours of work on the public holiday). Section 116 of the Act requires the employee to be paid at their base rate of pay, whereas clause 34.1(c) of the 2014 Agreement requires payment at “ordinary time plus where appropriate, the relevant shift penalties”.
Is the 2014 Agreement silent?
In determining the proper construction of the relevant provisions of the 2014 Agreement, it is necessary to make a finding as to whether the 2014 Agreement (in particular, clause 34.1(c)) is silent, for the purposes of clause 6.2, on the question of a Food Employee’s entitlement to payment for Easter Saturday in circumstances where the Food Employee is, in accordance with their ordinary rotating roster cycle, not rostered to work, and does not work, on Easter Saturday.[15] If the 2014 Agreement is silent on that question, then any relevant provisions of the FBTM, which are incorporated in the 2014 Agreement, will apply.[16] If the 2014 Agreement is not silent on that question, then the 2014 Agreement will apply to the extent of any inconsistency with any relevant provisions of the FBTM Award.[17]
I agree with the AMWU’s submission[18] that an enterprise agreement will not be silent in relation to a particular matter if:
(a)the matter is addressed by the enterprise agreement expressly; or
(b)the enterprise agreement implicitly deals with the matter, where one or more clauses is intended to cover the field in relation to the subject. An intention to cover the field in relation to a subject can be express or implied from the text of the clause(s), including by reference to the degree of detail covered by the clause(s), their subject matter, and the context. It is not necessary for alternative rights to be expressly excluded; an omission may show an intention to cover the field.[19]
In my view, clause 34.1(c) of the 2014 Agreement is silent in relation to the question of whether a Food Employee who, in accordance with their ordinary rotating roster cycle, is not rostered to work, and does not work, on Easter Saturday is entitled to payment for that day. An entitlement to payment on a public holiday on which the Food Employee was, at all times, rostered off work is not addressed expressly by clause 34.1(c) of the 2014 Agreement, nor could it be said that clause 34.1(c) is intended to cover the field in relation to payments for public holidays not worked. The limitation in clause 34.1(c) to “hours which on any other day would have been their ordinary hours” makes plain that there was no intention to cover the field.
Because clause 34.1(c) of the 2014 Agreement is silent in relation to the Dispute, it is necessary to have regard to relevant provisions of the FBTM Award, which are incorporated into the 2014 Agreement. Clause 37.3 of the FBTM Award, which is incorporated in the 2014 Agreement, applies to circumstances where the employee was always going be rostered off on the particular public holiday, but does not confer an entitlement to payment when the “rostered day off falls on a Saturday or a Sunday”, such as Easter Saturday.
Alternatively, even if it be determined that clause 34.1(c) of the 2014 Agreement is not silent in relation to the circumstances which have given rise to the Dispute, there is no inconsistency in the context of the Dispute between clause 34.1(c) of the 2014 Agreement and clause 37.3 of the FBTM Award because:
(a)first, clause 34.1(c) of the 2014 Agreement and clause 37.3 of the FBTM Award deal with different circumstances. Clause 34.1(c) of the 2014 Agreement deals with circumstances where the employee would have been rostered and required to work but for the fact the day is a public holiday. Clause 37.3 of the FBTM Award deals with circumstances where the employee was always going be rostered off on that day; and
(b)secondly, a Food Employee has no entitlement under either clause 37.3 of the FBTM Award or clause 34.1(c) of the 2014 Agreement to payment for Easter Saturday in circumstances where the Food Employee was never going to be rostered to work on Easter Saturday as part of their rostered ordinary hours and they did not work on Easter Saturday. No entitlement arises under clause 37.3 of the FBTM Award because it does not apply where the public holiday falls on a Saturday or Sunday, such as Easter Saturday. No entitlement arises under clause 34.1(c) of the 2014 Agreement because, in the circumstances which have given rise to the present Dispute, the Food Employee was never going to be rostered to work on Easter Saturday as part of their rostered ordinary hours and they did not work on Easter Saturday.
Other arguments made by the AMWU
Contrary to the AMWU’s submissions, construing clause 34.1(c) of the Agreement in accordance with the first arguable interpretation set out in paragraph [9] above does not require words to be impermissibly read into the clause. It is not a matter of inserting the words “but for the public holiday” or “except Saturdays” into clause 34.1(c). Rather, for the reasons set out elsewhere in this decision, the expression “during all or some of the hours which on any other day would have been their ordinary hours” in clause 34.1(c), construed in context, means hours which on any day other than the public holiday in question would have been their ordinary hours.
Clause 34.1(c) of the 2014 Agreement commences with the words “Employees (other than casuals)”. The AMWU submits as follows in relation to the exclusion of casuals from the operation of clause 34.1(c):
“The words ‘which on any other day would have been their ordinary hours’, means that if, on a different calendar day, the employee would work in the hours which make up the public holiday (noting the potential for regional part-day public holidays provided by 34.1(b)), they are entitled to the benefit of the clause. All that is required is this possibility.
That this is so is shown by the express exclusion of casuals. Casuals do not have fixed rosters; further, if they are not required to work on the public holiday it follows that they have not been rostered for it. The words ‘(other than casuals)’ only have work to do if the only threshold [for clause 34.1(c)] is potential rostering.” [20]
“…the following textual indicators demonstrate that the clause was intended to have a wider scope:
a.The express exclusion of casuals, who would never be rostered but not required to work…”[21]
I do not accept this argument. The expression “other than casuals” has work to do because it clearly indicates that casual employees have no entitlement to any payment or benefit under clause 34.1(c). That is consistent with clause 14.3(a) of the 2014 Agreement, which states that “casuals will be paid a loading of 25% above the base rate instead of paid leave and public holiday payments and to compensate for the nature of casual employment” [emphasis added]. The phrase “other than casuals” is also used, for the same purpose, in clause 34.1(a), which defines the public holidays for Food Employees for the purposes of the 2014 Agreement, and clause 34.1(h), which deals with “special circumstances”.
The AMWU’s additional evidence
The AMWU adduced the following additional evidence in the rehearing:
(a)Mr Michael Wickham, organiser employed by the AMWU, provided a witness statement[22] and was not required for cross examination in the rehearing. Mr Wickham has been employed by the AMWU since August 2015, and is the AMWU official who is responsible for representing AMWU members employed by Simplot at its Ulverstone, Devonport and East Devonport (Harvester) sites. Mr Wickham gave the following evidence in his witness statement about the Dispute:
“The Easter Saturday Dispute
4. The Easter Saturday Dispute has been going on since at least 2013. I am aware of the following facts from speaking to relevant delegates, from information given to me by Mr Littler, and from my own experience with the
sites.5. Ulverstone Food Employees work 12 hour shifts over a seven day roster, and therefore regularly work on weekends.
6. Apart from Easter Saturday, Ulverstone Food Employees get paid for all public holidays listed in the AMWU, CEPU and Simplot Australia Pty Ltd National Collective Agreement 2014-2017 (the Agreement), whether or not they are rostered. If they are not rostered to work, and do not work, they receive 7.6 hours pay.
7. A payslip of an employee at Ulverstone showing this payment is annexure MW-01 to this statement. A payslip of an employee at Devenport showing payment for a non-rostered, non-worked public holiday is MW-02.
8. The exception to this is Easter Saturday. If an Ulverstone Food Employee is
not rostered to work on Easter Saturday and does not work, they don't receive
any payment for the day.9. Before 2013, only employees that worked on Easter Saturday received money for it. If employees were rostered on, but not required to work, they would not be paid. I am told they made people take annual leave if they wanted to be paid for that day.
10. That changed in June 2013, when Mr David West (former Simplot Manager) wrote to Mr Littler to advise that Ulverstone Food Employees would be paid for Easter Saturdays on which they would otherwise have been rostered to work. A copy of that letter is attached and marked MW-03.
11. Mr West advised that employees would be back paid accordingly. I am told
by delegates that the back payment was not made.12. This did not fully resolve the Easter Saturday dispute, because employees
who were not rostered to work, and did not work, were still not getting paid.13. I have seen documentation from a delegate that shows that the Easter Saturday dispute was discussed in multiple meetings between delegates and management during at least the date range May 2013 to December 2015 - that is, when the Agreement was being negotiated.
(b)a letter in the following terms from Mr David West, Simplot Plant Manager – Ulverstone, to the State President of the AMWU was annexed to Mr Wickham’s witness statement (Easter Saturday Letter):
“I am writing to you regarding entitlements for Food Employees under the terms of the public holiday provisions prescribed at clause 35 of the AMWU and Simplot Australia Pty Ltd National Collective Agreement 2011-2014 (‘the Agreement’), in particular in relation to Easter Saturday and the payment entitlements for those Food Employees at our Ulverstone site who did not work on that day. As you will be aware this issue was the subject of discussions between the parties earlier this year resulting in Simplot agreeing to pay all employees on six day rosters at the time for Easter Saturday this year if they did not work that day. We have since been reviewing the basis of this payment, and also for any employee entitlement to back payment for previous years. The purpose of this letter is to confirm Simplot’s approach to this matter in relation to processing any back payments, and future payments during the life of the Agreement.
As you will be aware sub clause 35.1 of the Agreement prescribes Easter Saturday as a public holiday for Food Employees. Sub clause 35.1 (c) of the Agreement prescribes the following:
‘Employees (other than casuals) who are not required to work on public holidays during all or some of the hours which on any day would have been their ordinary hours, shall be paid for such ordinary hours not worked at ordinary time plus where appropriate, the relevant shift penalties.’
It is our view that this term provides a payment for those employees if he or she would have worked the Saturday of that particular week, if Easter Saturday had not fallen on that day. Accordingly those employees would be entitled to receive ordinary time for that day plus relevant shift penalties. Conversely employees who did not have Easter Saturday as part of their rostered ordinary hours for that week, and who accordingly did not work on that day, are not entitled to that payment. This was consistent with the previous practice for the site.
In accordance with that entitlement we will be making a back payment to those employees who would have had Easter Saturday as part of their rostered ordinary hours for the week in which Easter Saturday feel for the past 5 years (given that payment has already been made for 2013) consistent with the relevant terms of the Fair Work Act 2009 (Cth.) as amended. This payment will be made to those employees who are not otherwise paid any payment or received any other benefit for that day. Conversely will not be making a payment to those employees who did not have Easter Saturday as part of their rostered ordinary hours for that week and accordingly who did not work it.
As you will appreciate this will take some time to determine but from our review to date we believe that we have correctly paid all employees entitled to the payment for the day previous years. A preparedness to make these payments he is on a without admission of any liability basis by our company.
If you have any queries in the meantime regarding the above please do not hesitate to contact the undersigned.”
(c)the AMWU also tendered a payslip for a Food Employee in respect of the following periods:
(i)23 to 29 January 2012;
(ii)13 March 2017 to 19 March 2017;
(iii)12 June 2017 to 18 June 2017; and
(iv)23 to 29 April 2018.
Findings re additional evidence adduced in the rehearing
The payslips of Food Employees relied on by the AMWU in the rehearing show that:
(a)a Food Employee who was not rostered to work on Australia Day 2012, which was a Thursday, was paid 7.6 hours’ pay;
(b)a Food Employee who was not rostered to work on Australia Day 2012, which was a Thursday, was paid 7.6 hours’ pay;
(c)a Simplot employee at the Devonport site who was not rostered to work on Labour Day 2017, which was a Monday (13 March 2017), was paid 8 hours’ pay; and
(d)a Food Employee who was not rostered to work on the Queen’s Birthday public holiday, which was a Monday (12 June 2017), was paid 7.6 hours’ pay.
As to Mr Wickham’s evidence, he was not employed by the AMWU at the time either the 2011 Agreement or the 2014 Agreement, which replaced the 2011 Agreement, was negotiated, nor does the evidence establish that Mr Wickham was otherwise involved in any of those negotiations or in discussions with Food Employees about the negotiations. Notwithstanding those matters, Mr Wickham says that he is aware of various “facts from speaking to relevant delegates, from information given to me by Mr Littler [the former AMWU official responsible for dealing with Simplot], and from my own experience with the sites”.[23] In respect of each “fact” of which Mr Wickham says he is aware, he does not set out the particular basis of his knowledge of the alleged “fact”. As a result, it is not possible to discern from Mr Wickham’s witness statement whether his knowledge of a particular “fact” is (a) what he was told by one or more undisclosed persons, (b) what he has perceived or deduced from what he has been told, and/or (c) his own “experience with the sites” since August 2015, whatever that might have been.
In light of the matters to which I refer in the previous paragraph and for the reasons set out below, I give very little weight to the following parts of Mr Wickham’s witness statement:
- paragraph [9], which is hearsay and Mr Wickham has not disclosed the identity of the person(s) who made the representations to him or when they were made. The substance of what Mr Wickham says in paragraph [9] of his statement is in dispute, having regard to the content of the Easter Saturday Letter;
- the second sentence of paragraph [11]. Mr Wickham does not disclose which delegates made the representations to him, when they were made, or to which Food Employees the allegations of non-payment of back pay relate. The contention in the second sentence of paragraph [11] is contrary to the statement in the Easter Saturday Letter that Simplot would be making back payments to any Food Employees who had not in the past been correctly paid for Easter Saturday, according to Simplot’s understanding of the 2011 Agreement and the 2014 Agreement; and
- paragraph [13]. Mr Wickham does not identify or disclose the documentation shown to him, nor does he identify the delegates or members of management involved in the discussions, nor does he give evidence as to what was said, or the substance of what was said, by any person about the Easter Saturday dispute at any such meeting. As a result and in the context where there is no material difference between the relevant terms of the 2011 Agreement and the 2014 Agreement, Simplot is not able to effectively or fairly test the evidence.
The date of the Easter Saturday Letter is indecipherable on the copy annexed to Mr Wickham’s witness statement. However, it can be inferred from the following parts of the Easter Saturday Letter, together with Mr Wickham’s evidence that it was sent in June 2013,[24] that it was most likely sent in 2013, after Easter:
the reference in the first paragraph to “entitlements for Food Employees under the terms of the public holiday provisions prescribed at clause 35 of the AMWU and Simplot Australia Pty Ltd National Collective Agreement 2011-2014”. The 2011 Agreement ceased to operate on 5 February 2015, at which time the 2014 Agreement came into operation;[25]
the reference in the first paragraph to “this issue was the subject of discussions between the parties earlier this year resulting in Simplot agreeing to pay all employees on six day rosters at the time for Easter Saturday this year if they did not work that day”; and
the reference in the first paragraph on the second page to the fact that “payment has already been made for 2013”.
On the basis of the Easter Saturday Letter, I am satisfied that:
- following discussions between Simplot and the AMWU in 2013, Simplot agreed to pay, and did pay, all Food Employees on six day rosters for Easter Saturday 2013 “if they did not work for that day”. That is, even if a Food Employee was never going to be rostered to work on Easter Saturday 2013 as part of their ordinary rotating roster cycle and they did not work on Easter Saturday 2013, Simplot paid the Food Employee for Easter Saturday 2013;
- after making the payments referred to in the previous bullet point, Simplot reviewed the basis for the payments and any entitlement of Food Employees for back pay in respect of similar circumstances in previous years;
- Simplot’s subjective understanding of the relevant provisions of the 2011 Agreement, as expressed in the Easter Saturday Letter, was that:
- if a Food Employee would have been rostered to work on Easter Saturday in accordance with their ordinary rotating roster cycle, but they were not required to work on that day because it was Easter Saturday, then Simplot was required to pay the Food Employee their ordinary rate for that day plus relevant shift penalties; and
- if a Food Employee was never going to be rostered to work on Easter Saturday in accordance with their ordinary rotating roster cycle and they did not work on Easter Saturday, then Simplot was not required to make any payment to the Food Employee for Easter Saturday in that year.
- In years prior to 2013, Simplot paid Food Employees in accordance with the subjective understanding set out in the previous bullet point; and
- Simplot would, on a without admission of liability basis, make a back payment to any Food Employee if, at any time in the previous five years, the Food Employee would have been rostered to work on Easter Saturday as part of their rostered ordinary hours, but they were not required to work on that day because it was Easter Saturday and they were not in fact paid for that Easter Saturday.
Consideration of the AMWU’s submissions re objective background facts
The AMWU contends that the Commission may have regard to the following “objectively ascertainable background facts at the time the Enterprise Agreement was made” when construing the relevant provisions in the 2014 Agreement:
(a)Easter Saturday was not a public holiday in Tasmania, but was in New South Wales;
(b)a clause in identical terms to clause 34.1(c) of the 2014 Agreement was in the 2011 Agreement;
(c)Simplot’s general practice for paying public holidays under the 2011 Agreement and the 2014 Agreement has been, with one exception, to pay employees at all sites for public holidays not rostered and not worked. The one exception is at Simplot’s Ulverstone plant, where workers who are not rostered to work and do not work on Easter Saturday receive no payment;
(d)the AMWU and its members disputed the non-payment of Easter Saturday where workers were not rostered to work before, during and after the bargaining period for the 2014 Agreement; and
(e)the terms of the FBTM Award which would have limited the scope of such payment, and their non-inclusion in the 2014 Agreement.
The AMWU submits that in light of the “objective background facts” referred to in the previous paragraph, the apparent objective intention of the parties was to provide payment for public holidays not rostered and not worked, and there is and was no common intention that Easter Saturday be treated differently.
The AMWU submits that Mr West’s subjective understanding of the proper construction of the 2011 Agreement, as articulated in the Easter Saturday Letter, is not an objective background fact and cannot be used in ascertaining the correct interpretation of the 2014 Agreement.
I agree with the AMWU’s submission that Simplot’s subjective understanding of the relevant provisions of the 2011 Agreement, as articulated in the Easter Saturday Letter, is not an objective background fact, and cannot be used to aid in the task of properly construing the 2011 Agreement or the 2014 Agreement.[26] Although the Easter Saturday Letter put the AMWU on notice of Simplot’s view in relation to the proper construction of the relevant provisions in the 2011 Agreement, there is no evidence to suggest that the Easter Saturday Letter or its contents were communicated to the Food Employees and there is no basis to find there was a “meeting of the minds” or a common understanding consistent with Simplot’s understanding of the provisions.[27]
Just as Simplot communicated its subjective understanding of the relevant provisions to the AMWU, the limited evidence available reveals that the AMWU has for some time held and articulated the view that Food Employees who are not required (for any reason) to work on Easter Saturday are entitled to be paid. The end result is that Simplot and the AMWU have had, since at least 2013, different subjective understandings of the relevant provisions in the 2011 Agreement and the 2014 Agreement. That such differing views have been held and communicated does not assist in the task of construing the relevant provisions of the 2014 Agreement.
I am satisfied, on the basis of the Easter Saturday Letter, that Simplot paid Food Employees for Easter Saturday 2013 even if they were never going to be rostered to work on Easter Saturday 2013 as part of their rostered ordinary hours and they did not work on Easter Saturday 2013. However, I also find, on the basis of the Easter Saturday Letter, that in years other than 2013 Simplot has had a practice of not making make a payment to a Food Employee for Easter Saturday in a particular year if the Food Employee was never going to be rostered to work on Easter Saturday as part of their rostered ordinary hours and they did not work on Easter Saturday. Accordingly, there is no pre-agreement[28] or post-agreement[29] conduct on Simplot’s part of consistently paying Food Employees for Easter Sunday if the Food Employee was never going to be rostered to work on Easter Saturday as part of their rostered ordinary hours and they did not work on Easter Saturday.
The evidence in the form of the pay slips tendered by the AMWU and the facts agreed by the parties[30] establishes that, during the operation of the 2011 Agreement and the 2014 Agreement, Food Employees who do not work on public holidays, other than Easter Saturday, are paid by Simplot, regardless of whether the Food Employee (a) would have been rostered to work on the public holiday as part of their rostered ordinary hours, but they were not required to work on that day because it was a public holiday or (b) was never going to be rostered to work on the public holiday as part of their rostered ordinary hours. However, this conduct does not, in my view, establish a “meeting of the minds, a consensus” or a common intention, nor does it otherwise assist in the task of properly construing the relevant terms of the 2014 Agreement.[31] That is so because:
(a)first, apart from what appears to be an isolated incident in 2013, Simplot has not paid Food Employees for Easter Saturday if they were on a rostered day off on that day. Accordingly, Simplot’s conduct in not making such payments for Easter Saturday, save for in 2013, does not establish a “meeting of the minds, a consensus” in relation to the operation of clause 34.1(c) insofar as it applies to Easter Saturday;
(b)secondly, there is an explanation for Simplot’s different treatment of Easter Saturday and the other public holidays which is both logical and has a foundation in the terms of the 2011 Agreement and the 2014 Agreement. In particular, Easter Saturday obviously always falls on a Saturday and therefore always falls with the exception (for Saturdays and Sundays) to the requirement under clause 37.3 of the FBTM Award to pay an employee who does not work on a rostered day off which falls on a public holiday. In contrast, apart from ANZAC Day, the other public holidays referred to in clause 34.1 of the 2014 Agreement either always fall on a weekday or, if they sometimes fall on a weekend (such as Christmas Day), would usually be substituted by a weekday in lieu of the proclaimed day,[32] in which case payment would be made to the employee in accordance with clause 37.3 of the FBTM Award. Because of the significance of ANZAC Day, it is not the subject of a substituted day when it falls on a weekend. Although there is no dispute that in the past Simplot has paid Food Employees for ANAC Day when it falls on a Saturday (such as in 2015) even if the Food Employees were on a rostered day off on that day, it is important to bear in mind that ANZAC Day only falls on a weekend in two out of every seven years.[33] No explanation was given for why Simplot has treated ANZAC Day in this way. However, given the lack of frequency on which ANZAC Day falls on a weekend I do not consider the fact that Simplot has paid Food Employees for ANAC Day when it falls on a weekend (such as in 2015), even if the Food Employees were on a rostered day off on that day, to establish a “meeting of the minds, a consensus” in relation to the operation of clause 34.1(c) on Easter Saturday;
(c)thirdly, for whatever reason, the makers of the 2014 Agreement obviously decided that Easter Saturday should, in some respects, be treated differently from other public holidays. So much is clear from the fact that the “special circumstances” with which clause 34.1(h) is concerned apply to each public holiday “other than Easter Saturday”. While clause 34.1(c) does not expressly exclude Easter Saturday, clause 37.3 of the FBTM Award, which is incorporated into the 2014 Agreement and applies where the 2014 Agreement is silent,[34] excludes rostered days off which fall on a Saturday or a Sunday, such as Easter Saturday. Further, it is not industrially unusual for Easter Saturday to be treated differently from most other public holidays;[35] and
(d)fourthly, Simplot’s conduct in relation to making payments for Easter Saturday at sites covered by the 2014 Agreement other than the Ulverstone site must be treated with caution. That is because Ulverstone is the only site covered by the 2014 Agreement at which employees work ordinary hours on weekends. At all other sites covered by the 2014 Agreement employees who work on weekends are doing so on overtime. Given that clause 34.1(c) of the 2014 Agreement concerns “hours which on any other day would have been their ordinary hours”, it has no application on a weekend at a site where employees never work ordinary hours on a weekend.
I do not accept the AMWU’s argument that it is an objective background fact that the terms of the FBTM Award which would have limited the scope of such payment, are not included in the 2014 Agreement. Certain clauses of the FBTM Award are incorporated into the 2014 Agreement in accordance with clause 6.1 of the 2014 Agreement. This includes clause 37.3 from the FBTM Award. Whether clause 37.3 of the FBTM Award applies to a particular fact scenario depends on whether the 2014 Agreement is silent and the extent of any inconsistency between the 2014 Agreement and the FBTM Award. Those questions of construction are at the very heart of this Dispute.
Conclusion
For the reasons set out above, I resolve the Dispute by determining that, on the proper construction of the 2014 Agreement, Simplot is not required to make any payment to a Food Employee who, in accordance with their ordinary rotating roster cycle, is not rostered to work, and does not work, on Easter Saturday.
COMMISSIONER
Appearances:
L. Saunders of Counsel on behalf AMWU
M. Mead of Ai Group, on behalf of Simplot
Hearing details:
2018.
Sydney:
29 May.
<PR608392>
[1] AMWU v Simplot[2017] FWC 5282 at [5]
[2] AMWU v Simplot[2018] FWCFC 1156 at [42] (Full Bench Decision)
[3] Ex 1
[4] Amendments made to the original Agreed Statement of Facts have been underlined for ease of reference
[5] [2017] FWCFB 3005
[6] Full Bench Decision at [38]
[7] Clause 24.2(b) of the 2014 Agreement
[8] (1993) 40 FCR 511 at 518
[9] Full Bench Decision at [39]
[10] Clause 37.3 of the FBTM Award (which is incorporated into the 2011 Agreement and the 2014 Agreement) is similar to clause 21.7 of the FP Award
[11] Clause 35.1(c) of the 2011 Agreement and clause 34.1(c) of the 2014 Agreement are similar to clause 31.6.1 of the FP Award
[12] Clause 35.1(c) of the 2011 Agreement
[13] Full Bench Decision at [39]
[14] AMWU v Berri[2017] FWCFB 3005 at [114] (principles 1 and 3)
[15] Full Bench Decision at [41]
[16] Clauses 6.1 and 6.2 of the 2014 Agreement
[17] Paragraphs [23] to [28] of the Full Bench Decision
[18] AMWU’s outline of submissions on appeal dated 1 February 2018 at [20]
[19] Clyde Engineering v Cowburn (1926) 37 CLR 466 at 490-2; ABC v Industrial Court (SA) (1977) 138 LCR 399 at 416
[20] AMWU outline of submissions dated 24 July 2017 at [24]
[21] AMWU outline of submissions in reply dated 4 September 2017 at [6]
[22] Ex 2
[23] Ex 2 at [4]
[24] Ex 2 at [10]
[25] [2015] FWCA 727 at [6]
[26] AMWU v Berri[2017] FWCFB 3005 at [114] (principle 11); Franklins Ltd v MetCash Trading Ltd [2009] NSWCA 407 at [337]; Spunwill v Bab Pty Ltd [1994] NSWLR 290 at 312
[27] AMWU v Berri[2017] FWCFB 3005 at [114] (principle 15)
[28] That is, prior to the making of the 2011 Agreement or the 2014 Agreement
[29] That is, after the making of the 2011 Agreement or the 2014 Agreement
[30] See paragraph [4] above
[31] AMWU v Berri[2017] FWCFB 3005 at [114] (principle 15)
[32] See clauses 34.1(b) of the 2014 Agreement
[33] Ignoring the impact of leap years
[34] Unless cl.37.3 of the FBTM Award is inconsistent with a term of the 2014 Agreement
[35] See, for example, the 1994 Public Holidays Test Case Decisions, Print L4534 and L9178
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