“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Simplot Australia Pty Limited

[2017] FWC 5282

[2017] FWC 5282[Note: An appeal pursuant to s.604 (C2017/7118) was lodged against this decision.]

FAIR WORK COMMISSION

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
Simplot Australia Pty Limited
(C2017/1991)

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT DEAN	SYDNEY, 4 DECEMBER 2017

Application to deal with a dispute about matters arising under the enterprise agreement.

[1] On 13 April 2017 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) filed an application pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute with Simplot Australia Pty Ltd (Simplot).

[2] The application was made in accordance with clause 44 (Dispute Resolution) of the AMWU, CEPU and Simplot Australia Pty Ltd National Collective Agreement 2014-2017 (the Agreement). The nominal expiry date of the Agreement is 28 February 2017 but continues to apply.

[3] The question I need to determine is whether the Agreement requires Simplot to pay an Ulverstone Food employee who is not rostered to work, and does not work, on Easter Saturday. The resolution of the dispute therefore turns upon the interpretation of particular provisions in the Agreement.

[4] In doing so, I have had regard to the principles applicable to the construction of an enterprise agreement which were canvassed in detail in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd 1 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Limited2(Berri).

[5] For the reasons set out below, I have found that the Agreement does not require Simplot to pay an Ulverstone Food employee who is not rostered to work, and does not work, on Easter Saturday.

Background

[6] The application was initially allocated to another member of the Commission for conciliation. The dispute was not resolved and was reallocated to me for arbitration. Further attempts at conciliation were held before me on 9 and 21 June 2017.

[7] The dispute was not resolved by way of conciliation and the application proceeded to a hearing on 12 September 2017, with Ms L Saunders of Counsel appearing, with permission, on behalf of the AMWU, and Mr M Mead from the Australian Industry Group appearing on behalf of Simplot.

Matters agreed by the parties

[8] The Agreement applies to a number of Simplot processing plants across New South Wales and Tasmania, namely, Kelso, Bathurst, Devonport and Ulverstone. This dispute only concerns the site at Ulverstone, Tasmania.

[9] The parties submitted an Agreed Statement of Facts during the proceedings and is set out in full below:

‘AGREED STATEMENT OF FACTS

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 roster set by Simplot. From time to time, the roster includes work on Saturdays and Sundays.

10. On Easter Saturday, a Food Employee who is not rostered to work, and does not work, does not receive any payment.’

Relevant provisions in the Agreement

[10] Clause 44 of the Agreement sets out the steps to be followed when a dispute arises:

44.1 Procedure

Issues in dispute regarding the application of this Agreement; matters pertaining between the employee and the Company; and matters pertaining between the Unions covered by this Agreement and the Company, will be resolved between the party or parties and their nominated representatives (which for employee(s) can include a nominated union delegate or official) in accordance with the following procedures:

Site-specific disputes

a) Where the dispute between the parties concern a matter(s) specific to a particular site, the party or parties with the grievance must, in the first instance, raise the matter with the relevant site management in a timely manner, at the Company’s premises, at which the employee works or where the dispute arises. If the matter is not resolved at site level in a timely manner, then the matter:

i. must then be raised with the relevant national management, if applicable; or

ii. may be referred to FWC for conciliation and/or arbitration.

b) Where a matter that has progressed to the national level, in accordance with 44.1(a)(i), is not resolved at that level, the matter may then be referred to FWC for conciliation and/or arbitration.

National disputes

Where the dispute between the party, or parties, concern national issues, the party, or parties, with the grievance must, in the first instance, raise the matter with the relevant national management. If the matter is not resolved at national level, then the matter may then be referred to FWC for conciliation and/or arbitration.

44.2 While the steps in Clause 44.1 are being pursued, the status quo, which is the situation existing immediately prior to the issue in dispute arising, will prevail. No party shall be prejudiced as to the final settlements by the continuance of work in accordance with this Agreement.

44.3 In the event of a party failing to observe these procedures, the other party may take such steps as are open to resolve the matter.

44.4 None of the steps described above takes away:

a) an employee’s right to have a Union delegate or official; or

b) a Union delegate’s right to have an official present as necessary at any stage of the dispute resolution procedure.

[11] Clauses 34.1(a) – (c) of the Agreement are relevant to the current dispute and provide:

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 6.1 of the Agreement provides:

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] Clause 6.2 of the Agreement provides:

6.2 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.

AMWU’s submissions

[14] The AMWU’s outline of submissions commence by stating that the dispute is about clause 34.1(c) of the Agreement. It relies on the terms of the Agreement set out above to make good its case that Food Employees at the Ulverstone site who are not rostered to work on Easter Saturday are entitled to the benefit of clause 34.1(c).

[15] The AMWU submitted that nothing in the clause, viewed alone or with regard to the legitimate surrounding circumstances, gives rise to any ambiguity, and that accordingly, interpretation should proceed with regard to contextual factors only. 3

[16] The AMWU also submitted that it is not permissible to escape the plain language of the agreement by recourse to the industrial history of fundamentally different documents. 4

[17] The AMWU described the current dispute in oral submissions as follows:

‘[F]ood workers operate under a 24/7, 12-hour rotating shift roster. They work 12-hour shifts across every day of the week, across various shift times. They are paid a roster rate, so whatever pattern they work, they receive the same amount of money every week. In circumstances where those employees are not rostered to work on public holidays, they receive an additional 7.6 hours pay at their rostered rate.

The exception to this, and the only exception to this, is Easter Saturday. Easter Saturday is a deemed public holiday under the agreement. It’s not a public holiday in Tasmania. I mention that only as a point of interest. The question here is, firstly, what clause 36.1(c) (sic) requires employees to be paid in the Easter Saturday circumstance, but perhaps more plain, is it open to Simplot to treat Easter Saturday differently.’ 5

[18] In its written submissions, the AMWU contended that an employee becomes entitled to the benefit of clause 34.1(c) when:

a) A day is a public holiday within the meaning of clause 34.1(a), in this case, Easter Saturday is listed in clause 34.1(a)(iv) as a public holiday for food employees (other than casuals) for the purposes of this Agreement;

b) The employee is ‘not required to work on’ all or part that day – that is, food employees who were not rostered on Easter Saturday, and who were not requested to work, were therefore ‘not required to work on’ Easter Saturday.

c) On ‘any other day’ the time not worked ‘would have been their ordinary hours’ – that is, if on a different calendar day, the employee would work in the hours which make up the public holiday, they are entitled to the benefit of the clause. 6

[19] The AMWU argued that this interpretation was supported by the express exclusion of casuals, as they do not have fixed rosters and are not required to work on the public holidays, therefore they have not been rostered for it. 7

[20] The AMWU submitted that Simplot must pay a Food Employee who is not rostered to work, and does not work, 7.6 hours at the Rostered Rate, which in other words, is a nominal day containing 7.6 hours and where appropriate, contains the relevant shift penalties.

[21] The AMWU seeks the following orders from the Commission:

1. Food Employees employed under the Agreement who are not rostered to work, and do not work, on Easter Saturday must be paid 7.6 hours pay at the Base Rate.

2. Within 14 days of this decision, Simplot must:

i. Identify any Food Employees engaged under the Agreement who were not rostered to work, and did not work, on Easter Saturday in 2015, 2016 and 2017;

ii. Calculate what amount each identified employee would have received had they been paid 7.6 hours at their Base Rate; and

iii. Provide the calculations to each relevant employee.

3. Within seven days of order (2) above being complied with, Simplot must pay each employee identified under (2)(i) the amount calculated under (2)(ii).

a. If there is a dispute about the amounts calculated under Order (2), the parties have leave to have the matter relisted at short notice. 8

[22] I have given careful consideration to all of the submissions made by the AMWU, even if they are not specifically referred to in this decision.

Simplot’s submissions

[23] Simplot submitted that the Agreement does not require it to pay anything to Ulverstone Food Employees who are not rostered to work and who do not work on Easter Saturday.

[24] The written submissions filed by Simplot argued that there were a number of failings with the AMWU’s interpretation and that the AMWU has entirely misconstrued the effect and operation of clause 34.1(c). Simplot submitted that clause 34.1(c), properly construed, applies only in circumstances where an employee is rostered to work and then is not required to work as a result of the public holiday. 9

[25] Simplot made oral submissions that:

‘…the clause in question doesn’t have any work to do for non-rostered, non-worked public holidays. Instead it is assigned; its purpose, its history and its terms properly interpreted apply to rostered and not worked public holidays, so public holidays that would fall on a day that sits within an employee’s roster cycle, but then as a result of it being a public holiday there’s a direction not to attend for work. We say that that interpretation is a clear and obvious one, having regard to the totality of the term, and this in some way addresses the submission that has been made by the AMWU about us reading down the term. We don’t say we’ve read it down at all. Instead what we’ve done is have regard to the term in its totality as it sits within the context of the agreement.’ 10

[26] The parties had competing arguments about whether the Agreement is silent on the issue of a Food Employee being paid for not working on an Easter Saturday or whether it was a deliberate omission from the Agreement.

[27] Simplot contended that clause 6.2 of the Agreement contained a positive statement which read ‘where this agreement is silent then the relevant award must apply’. 11 The relevant award in this instance being the Food, Beverage and Tobacco Manufacturing Award 2010 (FBT Award), which, pursuant to clause 6.1 of the Agreement, is incorporated into the Agreement.

[28] In support of this interpretation, Simplot relied on clause 37.3 of the FBT Award, clause 31.6 of the Food Preservers Award 2000 and the 1994 Public Holidays Test Case Decisions 12. Simplot contended that these historical documents give effect to the concept of how employees should be remunerated for non-worked and non-rostered public holidays and may provide some guidance as to what the parties may have been thinking when they drafted clause 34.1(c) of the Agreement.

[29] Clause 37.3 of the FBT Award is set out 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.

(c) If an employee is rostered to take credited time accumulated pursuant to clause 28.6 as a day off on a week day and such week day is prescribed as a public holiday after the employee was given notice of the day off, then the employer must allow the employee to take the time off on an alternative week day.

(d) Clauses 37.3(b) and (c) do not apply in relation to days off which are specified in an employee’s regular roster or pattern of ordinary hours as clause 37.3(a) applies to such days off.

[30] Clause 31.6 of the Food Preservers Award 2000 provides:

31.6 Payment for public holidays

31.6.1 Subject to the other 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.

31.6.2 This subclause shall only apply to public holidays observed on days which would otherwise have been ordinary working days.

[31] Further, in its submissions Simplot relied on the following extract from the Full Bench in the Public Holidays Test Case Decisions:

‘We refer here to full-time workers who do not regularly work a five-day, Monday – Friday week. Such workers include persons who work regularly on Saturday and Sunday, workers with variable rosters, continuous shift workers and employees who work for nine days per fortnight or 19 days in each four weeks. This list is not intended to be exhaustive.

It may happen that the prescribed holiday falls upon a day when the employee would not be working in any event. Fairness requires that the workers be not disadvantaged by that fact. The appropriate compensation, we think is:

It may happen that the prescribed holiday falls upon a day when the employee would not be working in any event. Fairness requires that the workers be not disadvantaged by that fact. The appropriate compensation, we think is:

- An alternative “day off”; or

- An addition of one day to annual leave; or

- An additional day’s wages

We understand that such compensation is already provided in many awards.

The non-standard week of a full-time worker may include Saturday, Sunday or both. In accordance with our decision of 4 August, a public holiday (other than Easter Saturday and Anzac Day) which fell on such a day would be the subject of a substitution provision. The employee, in our opinion, should not enjoy leave in respect of both the “actual” day and the substitute day. In our opinion the following alternatives are equitable:

- The employee is not required to work on the “actual” day, receives the payment which he or she would ordinarily receive for working on that day and is not entitled to the substitute day;

- The employee is required to work the “actual” day but is entitled to the substitute holiday. (Should the substitute day be a non-working day for the employee, the compensation described in the previous paragraph would apply.)’

[32] Simplot argued that there was no evidence before the Commission about what was communicated to employees either during the course of negotiations or during the access period, in the manner contemplated by Berri. 13 In this case, Simplot urged the Commission to examine the various pre-reform award terms.14

[33] Further, Simplot contended that the reason casuals are excluded from the operation of clause 34.1(c) is because they are similarly excluded from the operation of the clause in its entirety. On this point of contention, Simplot goes further in oral submissions to say:

‘The further depth that is provided to that submission is also found in the casuals clause itself, clause 14.3(a) at page 33 of the bundle, that simply indicates the very conventional industrial proposition that casuals receive a 25 per cent loading, and that 25 per cent loading is in compensation for paid leave and public holiday payments. So there’s nothing remarkable about the fact that casuals are excluded from the operation of 34.1(c).’ 15

[34] Simplot summarised what they say is the correct interpretation of clause 34.1(c) of the Agreement in their written submissions as follows:

a. Clause 34.1(c) of the Agreement operates only to the extent that it provides an entitlement to payment for an employee who is rostered and not required to work.

b. Clause 37.3 of the FBT Award makes provision for an employee who is not rostered and not required to work (including the payment of 7.6 hours pay in certain circumstances). Those specified circumstances do not extend to “where the rostered day off falls on a Saturday or Sunday” 16 i.e. the clause does not provide an entitlement to payment for non-rostered and non-worked public holidays that fall on a Saturday or Sunday.

c. There is no additional mechanism within the Agreement to determine how employees who are not rostered and do not work on a public holiday which falls on a weekend are to be paid and in the absence of the incorporated FBT Award term (clause 37.3) there is no provision in the Agreement that deals with non-rostered and non- worked public holidays. The operation of the Agreement and the incorporation of the FBT Award, mean that clause 37.3 of the FBT forms part of the Agreement, and applies to the very circumstance of the current dispute.

d. Easter Saturday, by definition always has and always will fall on a Saturday, and so the entitlement to the benefit which is prescribed by clause 37.3 (which may be 7.6 hours pay), does not apply due to the specific exception within the terms of clause 37.3(a) of the FBT Award to public holidays which fall on a weekend.

Relief sought

[35] The AMWU seeks orders from the Commission, should it be successful in the current application. During the hearing, I directed the parties to the decision of Metropolitan Fire and Emergency Services Board v United Firefighters Union of Australia; Garth Duggan 17 (UFU Decision), and the decision on appeal to the Full Court of the Federal Court in Duggan v Metropolitan Fire and Emergency Services Board18(UFU Appeal Decision).

[36] The relevant sections of the UFU Decision are set out below:

‘The Power to make Orders in Private Arbitrations

[60] In the extract of the High Court decision in CFMEU v AIRC above it is made clear that the exercise of judicial power results in an order that is binding of its own force. So too is an order made under the Act pursuant to a specific power to make orders of binding force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator’s award is not binding of its own force. An arbitrator’s decision in a private arbitration should be expressed as a determination because it cannot be enforced under the Act as an order.

[61] In submitting to the contrary the MFB seeks to conflate the terms of ss.595 and 739 of the Act. Such reliance is misplaced. Section 595(3) is a limitation on arbitration powers and the issuing of orders in the absence of express authority to do so. Section 739 permits the Commission to arbitrate a dispute if the parties have authorised it to do so under a term of an enterprise agreement. The parties cannot confer a statutory power to make orders of a binding force on the Commission. All they can do is agree, as a matter of contract, to accept the outcome of arbitration. The power to arbitrate is created by the parties’ agreement and is enforceable as a matter of contract. The decision of the Full Bench in Victoria University v National Tertiary Education Industry Union[2015] FWCFB 2892 is not inconsistent with these principles.’

[37] In the final paragraph of the UFU Appeal Decision, the Federal Court said:

[94] We note for completeness that it was common ground that, on no view, could the Commissioners orders stand, because he had no power to make them. He had power, as a private arbitrator, to make a determination; he could not make binding orders of the kind which the Commission was empowered to make under the FW Act.

[38] In response, the AMWU contended that this proposition was ‘obiter, disharmonious with prior Full Bench authority, and wrong’ 19, and instead submitted that the Commission does have the power to make binding orders and relied on s.595(3) of the Act.

[39] Section 595(3) of the Act provides:

‘The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.’

[40] The AMWU contended that s.595(3), correctly interpreted, means that the term ‘arbitration’, within the scheme of the Act, encompasses a power to make orders, and the Commission may only so ‘arbitrate’ where expressly authorised to do so. It follows from this that an authority to arbitrate encompasses a power to make orders. In support of this proposition, the AMWU relied on Victoria University v NTEU 20 and DL Employment v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union21 as precedents for the Commission to make orders in this matter.

[41] Simplot submitted that there is no basis for the granting of an order in the terms sought by the AMWU, or any other order in settlement of the dispute, as any order would be beyond the scope of the dispute and beyond the jurisdiction of the Commission. 22

[42] Further, Simplot argued that there was no need to make formal orders in any event, as it had provided an undertaking to the AMWU that they would accept the determination of the Commission, subject to exercising any rights of appeal, and would comply with any appropriate back payments that were required to be made to its Food Employees. 23

[43] I consider the UFU Decision to be correct, and in any event I am bound to follow the UFU Decision, which was confirmed by the UFU Appeal Decision. Further, the issue of orders does not arise given my finding that the Agreement does not require Simplot to pay an Ulverstone Food employee who is not rostered to work, and does not work, on Easter Saturday.

Consideration

[44] As set out earlier, the question I need to determine is whether the Agreement requires Simplot to pay an Ulverstone Food employee who is not rostered to work, and does not work, on Easter Saturday.

[45] As set out in Berri, ‘the resolution of the disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose’ 24. It is clear that context and purpose must be considered even when the words of the provision being construed appear, and on their face, to have a clear and unambiguous meaning.

[46] In this matter, it was contended that no ambiguity arose and as such was unnecessary to take account of evidence of surrounding circumstances. I agree there is no ambiguity and accordingly I proceed to interpret the agreement with regard to contextual factors only.

[47] I agree with Simplot’s contention that, pursuant to clause 6.1 of the Agreement, clause 37.3 of the FBT Award is incorporated into the Agreement. Clause 6.1 states that the FBT Award is incorporated into the Agreement with the exception of certain named clauses or sub-clauses. The Agreement is precise as to which clauses and/or sub-clauses of the FBT Award are not incorporated. Clause 37.3 of the FBT Award is not one of the clauses specifically excluded (and therefore it is incorporated into the Agreement).

[48] Clause 6.2 then relevantly provides that the provisions of the Agreement apply to the extent that there is any inconsistency between the Agreement and the Award, and where the Agreement is silent, then the relevant Award must apply.

[49] I agree with the submissions of Simplot that clause 34.1(c), properly construed, applies only in circumstances where an employee is rostered to work and then is not required to work as a result of the public holiday. It follows then that the clause does not have any work to do for non-rostered, non-worked public holidays.

[50] Clause 37.3(a) of the FBT Award specifically excludes any payment or benefit for a rostered day off on a Saturday or a Sunday that falls on a public holiday. Given that Easter Saturday is not substituted for another day and always falls on a Saturday, there is no benefit provided by this clause in relation to Easter Saturday. This can be contrasted with clause 34.1(c) which only deals with employees who are ‘not required’ to work on a public holiday but does not specifically deal with employees who are ‘not rostered’.

[51] There are no other clauses within the Agreement which otherwise deals with employees who are not rostered and do not work on Easter Saturday.

[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.

[53] I do not consider that section 116 of the Act is relevant in the context of this dispute. The requirement for payment does not arise if the employee does not have ordinary hours of work on the public holiday in question.

[54] For these reasons, and having had regard to the document as a whole and the relevant clauses’ position within the Agreement, I find that the Agreement does not require Simplot to pay an Ulverstone Food employee who is not rostered to work, and does not work, on Easter Saturday. The dispute is determined accordingly.

DEPUTY PRESIDENT

Appearances:

L Saunders of Counsel for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

M Mead from the Australian Industry Group on behalf of Simplot Australia Pty Limited.

Hearing details:

2017.

Sydney:

September 12.

Final written submissions:

AMWU on 25 September 2017.

Simplot Australia Pty Limited on 9 October 2017.

 1   [2014] FWCFB 7447

 2   [2017] FWCFB 3005

 3   AWMU written submissions dated 24 July 2017, para 15

 4   Transcript PN157

 5   Transcript PN41-42

 6   AWMU written submissions dated 24 July 2017, para 22 – 23

 7   AWMU written submissions dated 24 July 2017, para 24

 8   AMWU written submissions dated 24 July 2017, para 32

 9   Simplot’s written submissions dated 22 August 2017, para 20

 10   Transcript PN120

 11   Transcript PN136-137

 12   Prints L4534 and L9178

 13   Respondent’s written submissions dated 22 July 2017, para 9-10

 14   Transcript PN115

 15   Transcript PN126

 16   Clause 37.3(a) of the FBT Award

 17   [2016] FWCFB 8120

 18 [2017] FCAFC 112

 19   AMWU Further Submissions re Remedy dated 22 September 2017, para 3

 20   Victoria University v National Tertiary Education Industry Union[2015] FWCFB 2892

 21   DL Employment v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2014] FWCFB 7946

 22   Simplot’s Submission in Reply as to remedy dated 9 October 2017

 23   Transcript PN22

 24   Berri at para 114

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