"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v UGL Resources Pty Limited (Project Aurora)

[2011] FWA 5641

[2011] FWA 5641

FAIR WORK AUSTRALIA

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
UGL Resources Pty Limited (Project Aurora)
(C2010/4535)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 2 SEPTEMBER 2011

Summary: whether crib entitlement due when working roster on weekend - construction of agreement - whether a fact about prior conduct is evidence of mutual intention - common subjective understanding - is task to construe instrument beneficially - Jones v Dunkel inference

[1] This matter concerns a dispute arising under the Project Aurora Agreement 2010 (“the 2010 Agreement”). The employer party is UGL Resources Pty Ltd (“the Employer”) and the employee organisations heard in respect of the issue in dispute are the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (“the AMWU”) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) (“the Unions”). Project Aurora is a project which concerns the construction of an ammonium nitrate, nitric acid and ammonia plant complex in Central Queensland (near Moranbah). The Employer is the Head Contractor for the project.

[2] Before coming to the issue in dispute, it is initially necessary to establish that Fair Work Australia (“FWA”) has jurisdiction to determine the dispute by arbitration. Clause 2.2 of the 2010 Agreement relevantly reads as follows:

2.2. Disputes Procedure

As a principle, the Parties and the Employees are committed to resolving all

disputes in a timely manner and as close to the source of the dispute as possible.

(a) General Disputes

In the event of a dispute about a matter under this Agreement or a dispute in

relation to the FW Act in the first instance the Employer Parties and the

Employee(s) must attempt to resolve the matter at the workplace level.

Any dispute arising on the Project shall be dealt with in the following manner:

(1) The Employee concerned shall raise the matter with the appropriate Leading Hand or Supervisor on the Site for resolution.

(2) If not resolved, the Employee concerned shall raise the matter with the next management level on the Site for resolution.

(3) If not resolved, the Employee concerned will raise the matter with the next management level on the Site for resolution.

(4) If not resolved, the Employee concerned will raise the matter with the most senior manager on the Site for resolution.

(5) If still not resolved, the dispute may be referred by either party to FWA for resolution by means of mediation or conciliation.

(6) If still not resolved, the dispute may be referred by either party to FWA for resolution by means of arbitration.

(7) At the steps identified in clause 2.2 (a) (2) to (6) the Employee

concerned may involve an Employee Representative (which may

include a union delegate or union official nominated by the Employee).

Where the Employer Parties and the Employee(s) have agreed that the matter be arbitrated, FWA may exercise the powers under the FW Act provided that, at all times, FWA ensures that any recommendation, decision, or determination arising from the FWA proceedings cannot be inconsistent with the National Code of Practice for the Construction Industry (the Code) and/orAustralian Guidelines for the Code, or inconsistent with legislative provisions. Additionally, any resolution of any dispute in accordance with this process must be consistent with, and must not change, the intent and/or terms and conditions of this Agreement.

At any stage, the Employer Parties may require the relevant Employee(s) to advise the Employer Parties in writing of the dispute in order to clarify the nature, extent and issues involved in the dispute in order to reach a resolution expeditiously. While the above process is being pursued, work shall continue as reasonably directed by the Employer Parties, including any direction to perform alternative work or training as is deemed relevant by the Employer Parties. Employees are required to remain ready, willing, able and available on Site to perform work as directed while this process is being pursued and/orwhile a dispute or disagreement exists [...] [My emphasis].

[3] In this matter, the relevant parties have jointly agreed that FWA may arbitrate the issue in dispute (which is a residual, unresolved issue arising from a more complex originating dispute). The issue in dispute concerns both the intent and the terms and conditions available under the 2010 Agreement, which must not be changed under the dispute resolution clause. The parties’ agreement implies that a process requiring determination by FWA that identifies the intent of a term of the 2010 Agreement, and the application of an entitlement available under the 2010 Agreement, is no impediment to the tribunal determining the issue.

[4] The question that is before me for determination, and about which the parties have agreed, is whether or not employees who work 10 or more hours on weekends and public holidays are entitled under sub clause 4.4(f) of the 2010 Agreement to be allowed or paid a crib allowance.

[5] The exploration of this question concerns the application of, and interaction between, various clauses in the 2010 Agreement.

[6] Principal amongst these is sub clause 4.4(f) of the 2010 Agreement itself, which reads as follows:

(f) Crib Time and Meal Allowances

Where an Employee works two (2) hours or more overtime after the ordinary ceasing time, a crib break of 30 minutes shall be allowed or paid as 30 minutes at double the Weekly All Purpose Rate.

In addition, an Employee who is not provided with accommodation in accordance with clause 6.2 shall receivea $10.50 meal allowance, where two (2) hours or more overtimeafter the ordinary ceasing time has been worked.

For each additional four hours, a further crib payment of 45 minutes at double the Weekly All Purpose Rate and meal allowance (where applicable) shall apply provided that work is scheduled to continue after the break.

[7] For reasons I will set out below, sub clause 4.5 of the Agreement is also relevant, and it reads as follows:

4.5 Meal Breaks and Rest Pauses

(a) Day workers

Day workers shall be allowed an unpaid break of thirty (30) minutes for a meal during their ordinary working hours. Such a break shall commence not earlier than 4 hours and not later than six hours after the commencement of their ordinary work. To allow for continuity of work, such meal breaks may be staggered. If an Employee does not have a break at the agreed time as a consequence of a direction made by the Employer Parties they will be paid the appropriate overtimerate until such time as the meal break is taken.

(b) Saturday, Sunday or Public Holidays

An Employee, who is required to work 8 or more hours overtime on a Saturday, Sunday or public holiday, shall be entitled to a paid meal break of thirty (30) minutes at the applicable rate not earlier than four hours and not later than six hours after the commencement of their work on that day.

(c) Shift workers

Each shift worker shall be allowed 30 minutes in each shift for a meal break. The break shall be taken so as to not interfere with the continuity of work where continuity is necessary. No deduction shall be made from the Employee's wage for this meal break.

(d) EveryEmployee shall be entitled to a rest pause of 30 minutes in the Employer Parties time. Such rest pause shall be taken at such times as will not interfere with the continuity of work where continuity is necessary, and so the work day is broken into 3 roughly equal periods. This clause also exists for Saturday, Sunday and public holidays when working 8 hours or more. Such rest pause may be staggered and taken at different times in the day, by different work groups to suit work requirements [my emphasis].

[8] Sub clauses 4.2(a) and 4.2(d) of the 2010 Agreement also have bearing on the construction and read as follows:

4.2 Hours of Work - Day Work

(a) Unless otherwise provided, the ordinary hours of work for weekly (full-time) Employees shall be thirty-six (36) per week averaged over a 52 week period. Subject to this clause the ordinary hours shall be worked between the hours of 6:00am to 6:00pm Monday to Friday inclusive and the maximum daily ordinary hours of work shall be eight (8) hours. The ordinary daily hours for a casual Employee shall be thirty-six (36) per week averaged over a five (5) day week (Monday to Friday). The time worked as required and directed by the Employer Parties which is in excess of 36 ordinary hours per week shall be paid as overtime only at the applicable rates.

[...]

(d) Rosters

(1) The Employer Parties may implement any form of ordinary time rosters (with overtime to be determined within those rosters) which are required to meet the needs of the Project including 12 hour shifts.

[...].

[9] The overtime provisions under the 2010 Agreement are also relevant in part. The relevant parts of sub clause 4.4 of the 2010 Agreement, which concern overtime, are replicated below:

4.4 Overtime

(a) For day workers, the time worked outside or in excess of the ordinary working hours prescribed in clause 4.3 shall be paid for at the rate of time and a half for the first two (2) hours and double time thereafter, provided that overtime worked on the weekend shall attract the following penalties:

(1) Saturdays - time and a half for the first two hours and double time thereafter with a minimum of four hours paid or worked;

(2) Sunday - double time for all hours, with a minimum of four hours.

[10] Sub clause 4.4(f) of the 2010 Agreement is located in the overtime provisions.

CONSTRUCTION AND CONTEXT

[11] Rather than set out the submissions of each party and then provide my own consideration, I will provide critical commentary as best I can as I proceed through the case outline. I do this to better make out the interactions between the parties’ respective cases and my perspective on the detail of the evidence and argument, before coming to my own construction of the 2010 Agreement in the context of the question as put to me.

[12] I also note at the outset that a number of matters fall from the resolution of the central question, and it may provide guidance on related matters.

CEPU

Weekend Overtime

[13] The CEPU contends that the entitlement in sub clause 4.4(f) of the 2010 Agreement is located in the overtime section (sub clause 4.4) of the 2010 Agreement, and must be read in that context. Consequently, an employee who performs more than two hours of overtime after the ordinary ceasing time must be entitled to the crib entitlement under sub clause 4.4(f) of the 2010 Agreement.

[14] There seems to me to be little in this claim that affects the construction of the meaning of the “ordinary ceasing time”. The crib break provided by way of sub clause 4.4(f) of the 2010 Agreement is an overtime entitlement irrespective of the meaning attributed to the “ordinary ceasing time”.

[15] But where the CEPU’s argument takes on greater consequence for this application is where it is claimed that the conditional phrase “after the ordinary ceasing time” means after ordinary hours have ceased.

[16] According to the CEPU, ordinary hours cease (in the context of the “overtime” crib entitlement under sub clause 4.4(f) of the 2010 Agreement) when the ordinary hours performed on a Friday cease. As this is the case, after two overtime hours are worked on a Saturday or on a Sunday, the entitlement to the crib allowance is enlivened. That is, the CEPU contend that the punitive entitlement applies as a result of the employee having to perform overtime hours on a weekend, which is after the cessation of ordinary hours on the previous Friday (which would have been a 10 hour shift comprised of 8 ordinary hours and two overtime hours under the current roster).

[17] Such a construction appears to me to be somewhat at odds with what might be the usual industrial purpose of a paid crib allowance for additional hours worked. The usual industrial purpose is to offset the inconvenience and\or to assist in managing employee fatigue when they have performed duties continuously beyond an anticipated number of hours on that day. That is, the allowance arises when the hours over which work has been performed are continuous, and not when they are broken by a day, or days (such as on a Sunday overtime roster).

[18] Further, if I was to accept the CEPU’s construction, and sub clause 4.4(f) of the 2010 Agreement came into effect after the second hour of a weekend shift of eight hours duration (minimum), then the breaks over the course of the shift would be as follows:

• At the two hour mark of the eight hour Saturday overtime shift an employee would be entitled to a crib break under sub clause 4.4(f) of the 2010 Agreement;



• No less than four hours after the eight hour Saturday shift had commenced, the employee would be entitled to a meal break under sub clause 4.5(b) of the 2010 Agreement;



• Sub clause 4.5(f) of the 2010 Agreement provides as follows:




For each additional four hours, a further crib payment of 45 minutes at double the Weekly All Purpose Rate and meal allowance (where applicable) shall apply provided that work is scheduled to continue after the break.

Employees would therefore be entitled to the above benefit at the six hour mark of the eight hour Saturday shift. The Employer quite reasonably contended that this entitlement was for a paid crib break (given the reference in the sub clause to work being performed “after the break”);

• Employees would also be provided a rest break in accordance with sub clause 4.5(d) of the 2010 Agreement.

[19] In a single eight hour Saturday overtime shift, an employee would be entitled to 4 breaks amounting to 1 hour and 35 minutes, which would break the working day into five segments.

[20] An entitlement on this scale represents an unusual number of interruptions across an eight hour working day.

[21] But the CEPU contends that the meal break-related sub clauses need not be read exclusively of one another and that the entitlements set out above follow from the ordinary construction of sub clause 4.5 of the 2010 Agreement. Further, there is no adverse inference to be drawn from an employer providing a suite of entitlements of such an array in circumstances where employees are working long over time weekend rosters (even if the uncontested evidence was that weekend rosters are shorter than those worked on a weekday, and the long working hours were implemented at the request of the employees to maximise their earnings whilst on site).

[22] The CEPU does argue, however, that when the 2010 Agreement is taken as a whole, it suggests that the ordinary daily shift length is 8 hours in duration, and that sub clause 4.5 of the 2010 Agreement relates to a shift length of that duration only. This construction, if it was to stand, would permit sub clause 4.5 and sub clause 4.4(f) of the 2010 Agreement to be conformable.

[23] That said, it is a difficult task of construction to characterise the first eight hours of a 10 hour weekend overtime shift as being an “ordinary” daily shift. Sub clause 4.2(a) of the 2010 Agreement sets out that ordinary hours are performed within a span of hours between Monday and Friday and the maximum daily hours for such days worked is eight hours. That is, the notion of a maximum numbers of hours (eight) is directly related in the text of the Agreement to the ordinary days of work (Monday to Friday) and not to work performed on weekends (which are overtime hours and paid as such).

Public Holidays

[24] In the case of a public holiday, the meaning of the “ordinary ceasing time”, in the setting of the CEPU’s argument as described above, would be more elusive. This is because the public holiday may not fall at a time after the ordinary ceasing time, if that were to be interpreted as being when ordinary hours cease on a Friday. For example, if a public holiday fell during a weekday, would the ordinary ceasing time as defined by the CEPU - being the end of ordinary hours on a Friday - have been passed?

[25] Further, the argument advanced by the CEPU in relation to public holidays appears, at least as I understand it, to be premised on the hours being worked on a public holiday being overtime hours, which they are not. Hours worked on public holidays are hours paid at punitive rates of pay (see sub clause 5.3 of the 2010 Agreement), as stipulated in the 2010 Agreement, but they are not overtime hours.

Mutual intention

[26] Beyond this, the CEPU sought to lead evidence through two witnesses to the effect that the provision of a crib allowance after performing 10 or more hours of overtime on a weekend was an industry standard. This was important because this evidence underpinned the CEPU’s claim that there was a mutual or common subjective intention that the practice in the predecessor agreement (the United Group Resources Pty Ltd Project Aurora Agreement 2007 (“the 2007 Agreement”)) reflected this industry standard, such that no discussion was required to be had about the application of sub clause 4.4(f) of the 2010 Agreement.

[27] Under cross examination, however, this evidence was not made out. The two witnesses did not have detailed knowledge of the relevant suite of agreements or their particular contents and were unable to establish that any practice, as they claimed, arose from the application of identical or even closely similar terms across the industry. Generally, their evidence was uncertain.

[28] At best, the witnesses gave evidence of a personal subjective understanding but no evidence of objective mutual understanding or subjective common understanding between the parties about the operation of sub clause 4.4(f) of the 2010 Agreement.

[29] That does leave untouched, however, the practice of the Employer under the 2007 Agreement, which was to pay the crib allowance (under a clause identical to that to sub clause 4.4(f) of the 2010 Agreement) albeit in the context of slightly different roster arrangements.

[30] I accept this evidence as providing background of a factual nature. But that bare fact alone it is not determinative of the matter at hand, as if it were evidence of an objective mutual intention. Nor is it evidence on its own that the parties had a subjective mutual intention or common subjective understanding of the operation of the relevant sub clause.

[31] The evidence put on by the Unions, and as agreed by the Employer’s witness, was that sub clause 4.4(f) of the 2010 Agreement was not discussed during the negotiations for the 2010 Agreement. The Union witnesses relied on their presumption that there was an industry standard that informed the operation of the sub clause. But as I have discussed above, that was a claim that proved difficult for the Union witnesses to substantiate in relation to any particular agreements applying to construction projects in Queensland. And if it was difficult for them as organisers, as Counsel for the Employer claimed, what chance was there for the Employer to have recognised the existence of the so-called industry standard?

[32] The Employer acknowledges payment (in lieu of the crib allowance) was made under the 2007 Agreement, but the evidence it led did not disclose any knowledge of the relevant issues in the context of the 2010 Agreement. This was because the Employer had negotiated the 2010 Agreement through persons who were no longer in its employment, and its efforts subsequently to reconstruct the decision making of the Employer (by contacting the Construction Manager at the time) had been to no avail.

[33] Indeed, to the extent it has any relevance at all given its subjective nature, unchallenged evidence of Ms Thompson, the current HR Manager for Project Aurora who was lead negotiator for the Employer in respect of the 2010 Agreement, was indeterminate as to what knowledge she possessed of the practice under the 2007 Agreement at the time the 2010 Agreement was made.

[34] In all, the conduct under the 2007 Agreement (which amounts to a fact that a crib allowance was paid) does not form, for purposes of my determination, a mutually-known objective background fact on which I can rely as evidence of mutuality of intention. For all I know, and seemingly for all it knows, the Employer may have extended the crib entitlement to employees, for a period of time, out of inadvertence, as an effective over-award-type payment over the course of the life of the 2007 Agreement, or for some other reason.

[35] That is, whilst a crib allowance was paid under the 2007 Agreement, which is a fact, the parties at no stage turned their minds to the meaning of sub clause 4.4(f) of the 2010 Agreement at the time they made that agreement. There was no objective background factual matrix that could have been the basis of any objective mutual intention (absent any mutual subjective intention or common subjective understanding about a settled interpretation of the sub clause, upon which reliance might be had an aid to construction).

[36] The CEPU did contend that I should draw a Jones v Dunkel-type adverse inference about the Employer’s case for reason that it did not call persons no longer in its employment to provide evidence that there was a common understanding about the operation of the relevant sub clause. It seems to me to be somewhat straying from the usual principles to draw an adverse inference of this kind in respect of the Employer who had put forward its witness Ms Thompson, its HR Manager.

[37] Ms Thompson, who was not called by the Union parties for cross examination, gave evidence of her efforts to ascertain on what basis the Employer had previously extended the entitlement. This did not yield any relevant information and Ms Thompson’s evidence was left unchallenged on the basis she had no knowledge of who was responsible for the decision-making in the previous period.

[38] Who then, other than the Construction Manager as was contacted, should the Employer seek out amongst its former employees? Would any particular person have assisted in the evidentiary case? And would that evidence have been contrary to the Employer’s case or would it have yielded only a subjective perception or hearsay? These circumstances remain unknown. This is clearly is not a case in which a person who is reasonably known or reasonably believed to possess direct knowledge of the matter in contention was withheld deliberately by a party from presenting evidence in the proceedings.

[39] Accordingly, I am not inclined to draw a Jones v Dunkel-type adverse inference about the Employer’s conduct of its case, and even if I was to do so, in the context I have discussed above, it might not be a defining point in the overall task before me in any event.

AMWU

Weekend Overtime

[40] The AMWU, whilst relying also on the case advanced by the CEPU above, contends that the crib entitlement under sub clause 4.4(f) of the 2010 Agreement arises as a matter of construction.

[41] Specifically, the AMWU contends that overtime worked on weekends is (or can be) part of the ordinary rosters, and that this is provided for under sub clause 4.2(a) of the 2010 Agreement. The maximum ordinary hours to be worked per day on that ordinary hours roster is eight hours (as is stipulated at sub clause 4.2(d)(1) of the 2010 Agreement). The overtime that is worked on the weekend, it is argued, is only determined within that ordinary time roster, which can apply to weekends because of the authority purported to be given to the Employer by sub clause sub clause 4.2(d)(1) of the 2010 Agreement.

[42] On this basis, the AMWU contends that the “ordinary ceasing time” referred to in sub clause 4.4(f) of the 2010 Agreement must be the conclusion of the eight “ordinary” or “daily” hours for that day for the purposes of enabling access to the entitlement provided by that sub clause.

[43] It follows, according to the AMWU, that as the employees who work a 10 hour roster on weekends work more than two hours of overtime, those employees are entitled to the crib allowance under sub clause 4.4(f) of the 2010 Agreement. The particulars of the argument put by the AMWU in the course of the proceeding are as follows:

I will note that I am making an argument in the alternative to that which has been put forward by the CEPU and specifically that which is referred to in the AMWU's submissions regarding whether or not ordinary rostered time can be worked on the weekends. Specifically, clause 4.4(f) states that:

Where an employee works two hours or more overtime after the ordinary ceasing time, a crib break of 30 minutes shall be allowed or paid as 30 minutes at double the weekly all-purpose rate.

We say that this gives rise to two key preconditions: firstly, that an employee must work two hours or more of overtime; and secondly, that that work is done after the ordinary ceasing time. We then look to clause 4.2(a) and specifically part of that clause which states that:

Subject to this clause, the ordinary hours shall be worked between the hours of 6 am to 6 pm Monday to Friday inclusive -

and that, "The maximum ordinary hours of work shall be eight hours." Now, with regard that, we say that this clause establishes two further things: firstly, that subject to this clause, the ordinary hours worked are 6 am to 6 pm, Monday to Friday - and I emphasise those words "subject to this clause"; and secondly, that the maximum, daily, ordinary hours that can be worked by any employee at Project Aurora is eight, eight hours.

Considering the words "subject to this clause", I will then take you to clause 4.2(d)(i) of the agreement - and that clause states that:

The employer parties may implement any form of ordinary-time rosters with overtime to be determined within those rosters, which are required to meet the needs of the project, including 12-hour shifts.

We say that that clause, which is subject to the clause outlining 6 am to 6 pm, Monday to Friday as the ordinary hours, means that the employer parties - ie, UGL Resources - has the right to set rosters for which the result is an ordinary time roster which goes beyond that which is set out more specifically from 6 am to 6 pm, Monday to Friday. In terms of the circumstances of this case, it is within the agreed facts that there is an ordinary time roster, not a roster that changes but a roster that is performed day-to-day, week-to-week, month-to-month and that that roster extends beyond the hours of 6 am to 6 pm Monday to Friday.

Thus we say that the effect of clause 4.2(d)(i) is that those hours which are worked on weekends by virtue of the ordinary-time roster which has been set by the employer parties - that is, UGL Resources and the respondent - that that gives rise to ordinary hours worked on those weekends being part of ordinary-time rosters. The upshot of that is that we say any ordinary rosters set by the respondent and under the construction of 4.2(d) means that those rosters should be considered when working up to 10 hours as the first eight of the maximum hours that can be worked being part of the ordinary-time roster and if an employee works two hours over that eight hours, then the crib allowance should be payable, considering the three clauses together - which are 4.4(f), 4.2(a) and 4.2(d)(i) 1.

[44] The difficulty I have with this construction is that the hours that are worked on weekends are rostered overtime hours, and are paid as such. It seems to me that sub clause 4.2(a) of the 2010 Agreement read in conjunction with the overtime sub clause (sub clause 4.4 (a) of the Agreement) makes it abundantly clear that time worked on weekends comprises overtime hours, which are paid at punitive overtime rates of pay.

[45] Further, there is no evidence that the Employer has sought to roster, by way of sub clause 4.2(d)(1) of the 2010 Agreement, weekend work comprising ordinary hours. The weekend roster does not appear to have any association with ordinary hours, which are rostered Monday to Friday (pursuant to sub clause 4.2(a) of the 2010 Agreement), and paid as such.

[46] Further, I do not see that sub clause 4.2(d) of the Agreement permits the Employer to roster employees to perform ordinary hours on weekends. The sub clause only permits the Employer to alter the “form” of the roster. This suggests to me that the duration, start and finish times of the ordinary hours roster may be changed, but the sub clause does not extend to empowering the Employer to require employees to perform ordinary hours on weekends irrespective of sub clause 4.2(a) of the 2010 Agreement.

[47] The plain words of the 2010 Agreement, as they appear to me, simply segment the week into two blocks: those days on which ordinary hours are performed and across which they are averaged, which are Monday to Friday, and those hours which are worked on weekends, which are overtime hours and paid as such (in accordance with sub clause 4.4 of the 2010 Agreement).

Mutual intention

[48] As with the CEPU above, the AMWU contended generally that there were background facts, such as demonstrable industry standards, that would be taken to establish or to assist in establishing a mutual subjective understanding (at the very least) about the operation of the 2010 Agreement. The AMWU’s case in this respect was advanced through the evidence of Mr Terry Bradley, an AMWU organiser.

[49] Mr Bradley’s evidence, in effect, was that while a small number of agreements in the industry with which he was familiar had different provisions to the 2010 Agreement presently before me, he believed them to have the same intent in relation to crib payments nonetheless.

[50] Mr Bradley’s evidence did not assist in supporting a conclusion that the parties at the time the 2010 Agreement was made, had acted on a common understanding of the relevant sub clause based on the terms of the sub clause or the industry practice in respect of that sub clause. Mr Bradley’s evidence, at best, represented a subjective understanding of the operation of sub clause 4.4(f) of the 2010 Agreement.

[51] Other than as set out above, the AMWU otherwise supported the case of the CEPU.

Employer

Weekend Overtime

[52] The Employer’s starting point is that the “ordinary ceasing time” is not a reference to ordinary hours but rather to “the usual finishing time on that day”. It follows, from this presumption, that sub clause 4.4(f) of the 2010 Agreement only applies where an employee performs at least two hours of duties after the usual finishing time.

[53] It follows that in neither case where an employee performs a 10 hour overtime roster on a weekend, or where they perform a rostered eight ordinary hours (paid at the punitive rate) and two overtime hours on a public holiday, does an employee attract the crib entitlement under sub clause 4.4(f) of the 2010 Agreement. This is because they have not worked beyond their usual or rostered finishing time.

[54] According to the Employer, the crib entitlement under sub clause 4.4(f) of the 2010 Agreement does not apply to such Employees (regardless of whether they performed weekend overtime of 10 hours duration, or eight ordinary hours plus two overtime hours on a public holiday) as they have not worked two or more hours beyond their “ordinary ceasing time”, which is their rostered shift of a known and anticipated duration.

[55] The “ordinary ceasing time”, according to the Employer, therefore appears to be when the hours as rostered cease, not when ordinary hours are completed (which have never been a reference point for “ordinary ceasing time”). The Employer contends that sub clause 4.2(c) and Appendix 1, page 38 of the 2010 Agreement lend support to this proposition for reason that they suggest the ceasing time is synonymous with the finishing time, which is the debrief and sign off for the day.

[56] Of course this is problematic, as the CEPU pointed out, for reason that if the ordinary ceasing time meant when debrief and sign off occur, it would never permit any overtime to be performed as the overtime would never be performed following the debrief and sign off (as the employees would no longer be on site).

[57] Further, I observe that on the Employer’s construction, the crib entitlement under sub clause 4.4(f) of the 2010 Agreement might never need to be paid or paid in lieu so long as the Employer unilaterally declared an amended working length for the day (presumably by posting a new roster). Having absorbed the additional hours into the new roster, the additional hours could not be held to be overtime hours (as they would have had they been worked after the cessation of work under the former roster).

[58] But the Employer contends in answer to this criticism, that its scope to unilaterally declare an extended roster of such duration is limited by its practices (it changed roster lengths in November on the request of employees and not by an exercise of prerogative). Sub clause 4.1(b)(4) of the 2010 Agreement also serves to limit the employer’s power to unilaterally alter a roster length. This sub clause obligates the Employer to “balance the needs of Employees and the working hours required for the Project”. A unilateral declaration of an extended roster absent the approval of the Employees, therefore, would be likely to contravene the obligation upon the Employer set out in sub clause 4.1(b)(4) of the 2010 Agreement.

[59] That said, the Employer further contends that sub clause 4.5 of the 2010 Agreement is “exhaustive of the question of the number of breaks which will occur during the usual working day”.

[60] Sub clause 4.5 of the 2010 Agreement relevantly stipulates that:

• an employee “who is required to work 8 or more hours overtime on a Saturday, Sunday or public holiday, shall be entitled to a paid meal break [...]”; and



• “[...] a rest pause of 30 minutes in the Employer’s Parties time [...]” (sic) “so the work day is broken into 3 roughly equal periods”, including when an employee works 8 hours or more on a Saturday, Sunday and a public holiday.

[61] The Employer contends that an employee can only be entitled to a rest pause and a meal break when work is performed on Saturday, Sundays and public holidays, for a roster of any duration in excess of eight hours, and those two breaks segment the work day into “3 roughly equal periods”.

[62] The Employer contends that this is a necessary construction because if this were not the case, sub clause 4.4(f) of the 2010 Agreement would fall into conflict with sub clause 4.5(d) of the 2010 Agreement.

[63] That is, sub clause 4.5(d) of the 2010 Agreement states that there shall only be two breaks when working 8 or more hours on a Saturday, Sunday or public holiday and the working day is broken up into three periods. If an employee was to receive an additional crib break during this usual working day, it would mean the employee had received an entitlement beyond that set out in s.4.5(b) and s.4.5(d) of the 2010 Agreement and the working day would be broken up into more than the three periods as intended by s.4.5(d) of the 2010 Agreement.

[64] On this approach to construction, the crib allowance under s.4.4(f) of the 2010 Agreement can only become available when the employee works at least two hours after the rostered work ceases, which is when the usual working day ends (even if that rostered work includes two or more hours of overtime).

[65] The Employer contends that this construction allows for the sub clauses to be read conformably. It also demonstrates, according to the Employer, why the construction posed by the AMWU, as set out above, cannot succeed. That is, if it was accepted that the ordinary ceasing time was a proxy for the conclusion of ordinary hours, sub clauses 4.5 and 4.4(f) of the 2010 Agreement would fall into conflict.

[66] The Employer’s construction also demonstrates, it claims, why the “ordinary ceasing time” cannot connote ordinary hours because the hours worked on Saturday and Sundays are all rostered overtime hours. The notion of ordinary hours ceasing has no application on weekends when all the hours worked are overtime and paid as such.

[67] The Employer also draws support for its case by reference to the Building and Construction General On-Site Award 2010 (“the Modern Award”). The gist of the Employer’s contention in this regard is that the Modern Award:

• provides access (at sub clause 35.3(b) of the Modern Award) to a paid crib break when two hours or more of overtime is taken “after the usual finishing time” (which is defined as the “end of ordinary hours”); and

• extends an entitlement to a second paid meal break (by way of sub clauses 37.7 and 37.8 of the Modern Award) when an employee works more than 8 hours on a weekend.

[68] Two points follow from this. The first is that sub clause 35.(3)(b) of the Modern Award is the equivalent of sub clause 4.4(f) of the 2010 Agreement, but goes beyond the 2010 Agreement by defining usual finishing time as being a reference to the completion ordinary hours. This means that a paid crib break under sub clause 35.(3)(b) of the Modern Award is not available to an employee who works overtime hours on a weekend: it applies only to days on which ordinary hours are worked.

[69] Secondly, the Employer contends that the 2010 Agreement does not use the same words as sub clauses 37.7 and 37.8 of the Modern Award but instead prescribes, at sub clause 4.5 of the 2010 Agreement, that an employee working 8 or more hours of overtime on a weekend has one paid meal break and a paid pause.

[70] In effect therefore, the Employer maintains that the structure of entitlements under the Modern Award and the 2010 Agreement are different because they were intended to be different by the parties, and that there is no argument that sub clause 37.8 of the Modern Award should be imported into the 2010 Agreement.

[71] I note that early in the proceedings the Employer made clear that its current practice to make payment of the crib allowance under sub clause 4.4(f) of the 2010 Agreement was not an indication of its view of the proper construction of the “ordinary ceasing time”. Its conduct in this regard was a matter of industrial convenience, not an indication of its subjective view of the operation of the sub clause.

CONSIDERATION

[72] I have provided some critical commentary on the parties’ respective submissions and the evidence above.

[73] Looking at the language of the 2010 Agreement in its context, it appears to me that the availability of crib allowances under sub clause 4.4(f) of the 2010 Agreement arises in the ordinary industrial context where the working hours that are ordinarily expected to have been completed are completed, and further work paid as overtime is required. A crib allowance in accordance with sub clause 4.4(f) of the 2010 Agreement is to be provided to employees who work at least two hours of overtime after the ordinary ceasing time, which is the conditional phrase regulating access to the entitlement (the crib allowance).

[74] On its face, the conditional phrase refers to the time at which work ordinarily ceases. To determine the time at which work ordinarily ceases it is necessary to consider the circumstances at the relevant time by reference to the language of the 2010 Agreement. The phrase, in my view, has a different outcome depending on the circumstances to which it applies in different situations under the 2010 Agreement.

[75] This approach, in my view, is the only way in which all the actual words of the 2010 Agreement can be given work to do in their context.

[76] In the first instance, it seems to me that where work is performed Monday - Friday, “the maximum daily ordinary hours” is clearly intended to be eight hours.

[77] In this context, the meaning of “after the ordinary ceasing time” for sub clause 4.4(f) of the 2010 Agreement means after eight ordinary hours. This would allow sub clause 4.4(f) of the 2010 Agreement to be read conformably with sub clauses 4.2(a) and s 4.4(a) of the 2010 Agreement. If I did not adopt this reading then the specific terms of sub clause 4.4(a) of the 2010 Agreement would be read down by reference to the generalised terms of sub clause 4.2(a) of the 2010 Agreement, and the notion of ordinary working hours for purposes of accessing overtime (under sub clause 4.4(a) of the 2010 Agreement) would similarly have little work to do under the 2010 Agreement.

[78] I add also that this approach conforms with the definition of “finishing time” in the Modern Award, as set out above.

[79] Consequences flow from this construction.

[80] Firstly, it follows that employees who work two or more hours of overtime on a weekday (after the completion of eight ordinary hours of work) are entitled to a crib allowance under sub clause 4.4(f) of the 2010 Agreement.

[81] Secondly, it follows that an employee who performs two hours of overtime in the same circumstances on a public holiday (that is, after the completion of eight ordinary hours and irrespective of them being paid at the punitive public holiday rate) is entitled to the benefit under sub clause 4.4(f) of the 2010 Agreement. 2

[82] As I said above, the notion of “ordinary ceasing time” produces different outcomes depending on the circumstances to which it is applied. In the above, I found it could not override the plain language concerning the cap on maximum daily ordinary hours after which overtime hours come into effect provided by sub clauses 4.2(a) and 4.4(a) of the 2010 Agreement. Equally so, the conditional phrase in sub clause 4.4(f) of the 2010 Agreement cannot displace the definition of the hours that are worked on a weekend. They are all overtime hours, they are paid as such, and are clearly so for reason of the plain language of sub clause 4.4(a) of the 2010 Agreement read in conjunction with sub clause 4.2(a) of the 2010 Agreement.

[83] This has the effect that the meaning of “ordinary ceasing time” is not referable to the point at which the ceiling on ordinary hours is reached, but when the anticipated number of hours to be worked under the weekend overtime roster are completed. The “ordinary ceasing time” for week day rosters is different therefore, from that for weekend overtime rosters.

[84] Again, this construction allows all the relevant provisions to be read conformably.

[85] This construction also has consequences. It follows that the entitlement to a crib allowance under sub clause 4.4(f) of the 2010 Agreement does not arise in relation to a weekend overtime roster (other than where two hours or more of additional overtime is required to be worked after the hours prescribed in the published roster). Other than that situation, sub clauses 4.5(b) and 4.5(d) (paid meal break and paid rest break) of the 2010 Agreement set out the entitlements the Employer is obligated to extend to an employee who works an overtime roster on the weekend.

[86] Sub clause 4.5(d) of the 2010 Agreement appears to have the apparent intention of segmenting the working day, including Saturdays, Sundays and public holidays, where that working day comprises 8 or more hours, into 3 periods separated by a paid meal break of 30 minutes at the applicable rate and a 30 minute rest pause:

(d) EveryEmployee shall be entitled to a rest pause of 30 minutes in the

Employer Parties time. Such rest pause shall be taken at such times as will

not interfere with the continuity of work where continuity is necessary, and so

the work day is broken into 3 roughly equal periods. This clause also exists for Saturday, Sunday and public holidays when working 8 hours or more. Such rest pause may be staggered and taken at different times in the day, by different work groups to suit work requirements.

[87] The construction I have preferred above permits sub clause 4.5(d) of the 2010 Agreement to operate on its plain terms and without any contrivance. If I had interpreted sub clause 4.4(f) of the 2010 Agreement as providing an entitlement in the course of the weekend overtime roster, the working day would have been subject to interruption on a frequency not anticipated by sub clause 4.5(d) of the 2010 Agreement.

[88] I acknowledge that the construction I have preferred follows from my findings that absent any evidence of mutual objective intention or mutual subjective understanding between the parties about sub clause 4.4(f) of the 2010 Agreement, I should look to an approach that has regard to all the relevant clauses and allows them to work as they must, and in conjunction with one another. This means, on my construction, that employees required to work weekend overtime rosters may not receive the entitlements to crib allowance that a week day employee working a 10 hour roster might. But I can only surmise that this resulted from an exchange in relation to access to the extended punitive rates of pay across weekends that may have been known as being available on the project life, or perhaps for some other purpose.

[89] I appreciate that there may be a suggestion I should construct the 2010 Agreement in a beneficial way for one party or another. But the construction of an agreement made under the Act should not be motivated by an objective to extend a benefit to any one particular party. So much was said by Hayne J in his dissenting judgment in Communication Exchange Ltd v the Deputy Commissioner of Taxation (2003) 201 ALR at 271:

Secondly, reference was made in argument to the purpose of the legislation in question and of the relevant provisions of the award. It is, of course, proper to seek to give the award a meaning which advances that purpose, so far as that can be done consistently with the text. However, it is one thing to say that the purpose of the legislation, and the award, is to secure appropriately funded superannuation benefits for employees. That is undoubtedly so. It is another thing to say that, in order to further that purpose, when a question as to the construction of the award arises, the court should seek to give it a meaning that maximises the superannuation contributions payable. I accept that, for the reasons given by the Full Court, and by Hayne J, the narrow construction of the award for which the appellant contends produces practical results that appear to limit the obligations of employers in relation to casual employees in a manner inconsistent with the demonstrable legislative and industrial purposes. On the other hand, I do not accept that those purposes can only be advanced by adopting the construction for which the respondents contend. Furthermore, that construction appears to me to involve an unacceptable disregard of the language of the instrument 3.

[90] I note comments by Hayne J were in respect of an arbitrated award, and not an agreement negotiated between the parties themselves (which might give rise to a still wider scope for bargaining and negotiation).

[91] By way of concluding comment, I note that in the process of answering the central question I have made findings in relation to a number of allied matters, which may give rise to agitation for payment. I note simply that as is the ordinary case, an employer may seek to set off in respect of other payments made to date. The details of such payments against which set off can be sought are not known to me such that I can provide any reasonable further comment or guidance to the parties.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J. Blackburn, Counsel for Respondent

Ms J. Campbell for the AMWU

Mr C. Massy, Hall Payne Lawyers for the CEPU

Hearing details:

2011.
Brisbane.
August 10 and 11.

 1   Transcript of proceedings dated 11 August 2011, PNS 827 - 835.

 2   I note that provision is made under sub clause 4.5(b) of the 2010 Agreement for a paid meal break to be provided to an employee who performs 8 or more hours of overtime on a public holiday. This configuration of hours (and how it might arise) was not before me for consideration and is not a situation that arises in the rostered hours applying to the Project at this point.

 3   Communication Exchange Ltd v the Deputy Commissioner of Taxation (2003) 201 ALR at 271

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