Bruce Smith v Queensland Rail Transit Authority T/A Queensland Rail Limited
[2025] FWC 308
•27 FEBRUARY 2025
| [2025] FWC 308 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Bruce Smith
v
Queensland Rail Transit Authority T/A Queensland Rail Limited
(C2024/6793)
| DEPUTY PRESIDENT LAKE | BRISBANE, 27 FEBRUARY 2025 |
Alleged dispute about any matters arising under the enterprise agreement – overtime penalties for casual employees – recommendation – dispute resolved
Background
On 25 September 2024, Mr Bruce Smith (the Applicant) made an application to the Fair Work Commission (the Commission) seeking to resolve a dispute with Queensland Rail Transit Authority T/A Queensland Rail Limited (the Respondent) under s.739 of the Fair Work Act 2009 (the Act).
The dispute concerns clause 67.1 of the Queensland Rail Station Operations Enterprise Agreement 2023 (the Agreement). Clause 23 of the Agreement allows the Commission to deal with the dispute initially through conciliation. It is noted that due consideration will be given to any Recommendation made by the Commission.[1] A conciliation conference was conducted on 11 November 2024. Conciliation was not successful. The parties requested that the Commission make a recommendation.
The Applicant is employed as a Casual Porter by the Respondent.
Question for determination
The parties presented the question to be determined before me as follows:
Is a casual employee entitled to overtime penalties when they work more than 8 hours on any given day? Including but not limited to circumstances where:
1.A casual employee is offered and accepts to work a shift above 8 hours; and
2. A casual employee accepts a shift of fewer than 8 hours and, during the shift,
is offered and then works additional hours, bringing their total hours for the day above 8
Relevant Provisions of the Agreement
Clause 28 of the Agreement states:
28. Casual employment
28.1 Casual employees:
28.1.1 Are employed on an irregular basis, with no set routine or work pattern (i.e., hours of work varying from week to week, with inconsistent starting or finishing times);
28.1.2 have no guarantee of ongoing employment and are engaged on an “as needs” basis;
28.1.3 are free to refuse offers of work at any time due to other commitments; and
28.1.4 are identified in writing as a casual at the commencement of their employment.
28.2 The minimum shift for a casual employee is 4 hours unless the casual employee is replacing a part-time employee whose rostered hours for the shift are less than 4 hours. In such cases, the minimum shift for the casual employee is the length of the part-time employee’s rostered shift.
28.3 Casual employees will receive a 23% loading in addition to their base rate of pay. This loading will be paid in addition to any applicable penalty rates, overtime payments or allowances.
Clause 67.1 of the Agreement provides the following:
67 Hours of work
67.1 Shift lengths
Ordinary hours may be worked in shifts of up to 12 hours without attracting overtime penalties subject to the following:
·Where the ordinary working hours are to exceed 8 on any day, the arrangements of hours will be subject to the agreement of the business and the majority (50% plus 1 employee) of employees concerned:
·Provided further that where any arrangement of ordinary hours exceeds 8 on any day, employee representatives will be notified in writing within 14 days of commencement of work under such arrangement.
67.2 Where ordinary hours are to exceed 10 hours up to 12 hours it will be subject to the agreement of the business and at least 66% of the employees within the area concerned and meeting the following criteria:
·Occupational health and safety requirements; and,
·Suitable rostering arrangements being made.
Implementation
67.3 The 38-hour week may be worked on 5 in any 7 days or 10 in any 14 days at ordinary time. Penalty payments for ordinary time worked on a Saturday or a Sunday are to be paid in accordance with clause 74 and 75 respectively of this agreement.
67.4 Scope of working - For those employees working a 38-hour week, the following scope of implementation of a 38-hour week in accordance with clauses 67.9 to 67.13 of this Agreement is available:
· employees can work less than 8 ordinary hours each day; or
· employees can work less than 8 ordinary hours on one or more days each work cycle; or
· by fixing one or more workdays on which all employees will be off during a particular work cycle; or
· by rostering employees off on various days of the week during a particular work cycle so that each employee has one workday off during that cycle.
The instigation of this process can be at either the request of the business or the employees.
67.5 Where the arrangement of ordinary hours work provides for a leisure day off, the business and the simple majority of employees concerned may agree to accrue up to a maximum of 5 leisure days off. Where such agreement has been reached, the accrued leisure days off will be taken within 12 calendar months of the date on which the first leisure day off was approved. If not taken within that time frame payment will be made for the accrued time at overtime rates.
67.6 Employees are required to observe the nominated starting and finishing times for the workday, including designated breaks to maximise available work times.
67.7 The ordinary starting and finishing times of various groups of employees or individual employees may be staggered.
67.8 Preparation for work and cleaning up of the employee’s person will be in the employee’s time except where the employee undertakes very dirty work or works with hazardous or toxic substances
The balance of Clause 67 deals with rostering and with how the 38-hour week is to be worked by employees.
Clause 68 of the Agreement sets out the overtime provisions:
68 Overtime conditions
Overtime
68.1Overtime Payments - All time worked in excess of, or outside, an employee’s ordinary working hours will be paid at the rate of time and a half for the first 3 hours and double the rate thereafter except for:
·Overtime worked on Saturday after the completion of a rostered ordinary hours shift which will be paid at the rate of double time.
·Overtime worked on Sunday which will be paid at the rate of double time.
68.2 Calculated daily - overtime will be calculated on a daily basis.
68.3 Shiftworker overtime - for employees, who meet the glossary shiftworker
definition, overtime will be paid at the rate of double time.
“Ordinary hours” is defined in the glossary of the Agreement to mean:
Means the minimum number of hours an employee must work on average each week. Ordinary hours do not include overtime.
Background
The dispute is confined to the scenario where a casual accepts a shift over 8 hours or is working a shorter shift and agrees to stay back for a total shift length of over 8 hours. A casual is clearly free to decline such a shift, in accordance with clause 28 of the Agreement.
It is worth briefly noting how casuals are rostered by the Respondent. The Respondent uses a shift-rostering system called “Deputy”.[2] The Respondent provided examples of the Applicant’s recent shifts in which he accepted a request to extend his shift. The system shows when he is not available and shows the time at which he accepted the shift extension.[3]
I note the Rostering Principles in Schedule 2 of the Agreement are exceedingly complex.
The Respondent summarised its view of the rostering process as it relates to casuals as follows:
1. Group Station Master (GSM) location rosters for full time employee are posted 14
days in advance
2. Permanent Service Delivery porters are then provided their roster for the week (still
14 days in advance)
3. Any shifts not filled in the posting of the rosters in steps 1 and 2 are then offered to
casual employees based on their availability, location criteria and fatigue compliance
(this is usually one to two shifts per casual and are classed as planned shifts) -
casual employees have 24 hours to accept or decline the shift.
4. Any shifts that are declined by casual employees are then re-offered to other casual
employees - this process goes on until the shift is filled or the casual list is
exhausted then the shift is marked as unfilled.
5. Any unplanned shifts are offered to casual employees with relevant availability,
location criteria and fatigue compliance > 48 hours’ notice.
6. Any short notice shifts are offered casual employees with relevant availability,
location criteria and fatigue compliance < 48 hours’ notice.[4]
The Applicant’ argument is that in accordance with clause 67.1 of the Agreement, the maximum shift length of an employee is either:
“a. With agreement between QR and the employees concerned: Employees may work
up to 12 hours, after which overtime applies.
b. If there is no agreement between QR and the employees concerned: Shifts will be
capped at 8 hours, and overtime applies beyond this threshold.”[5]
In summary, the Applicant argues that as there is no Agreement between the employees concerned and the employer, then the maximum shift length that applies is 8 hours. After the 8-hour threshold is passed, overtime will apply.
The Respondent argues that for a casual, the ordinary hours are the rostered hours which the casual accepts to work. The Respondent argues that a casual is “entitled to overtime in the event they work in excess of their accepted ordinary hours, or in excess of 38 hours in a given week.”[6]
Consideration
The principles of construction and interpretation as set out in AMWU v Berri Pty Ltd[7] are well known and I do not need to repeat them in full. As a first step, it must be determined whether the Agreement can be interpreted according to its plain and ordinary, or if it is ambiguous. If the Agreement has a plain meaning, then evidence of surrounding circumstances will not be admissible to contradict that plain meaning.
The Full Court of the Federal Court of Australia expanded upon the principles of interpretation in James Cook University v Ridd.[8]
Firstly, it should be observed that both parties provided thorough and cogent submissions on how the principles of interpretation should be applied to the dispute at hand.
The dispute turns on whether sub-clause 67.1 of the Agreement should be applied to casuals. Sub-clause 67.1 interacts with Clause 68, the overtime clause.
Applicant Submissions on Interpretation
The Applicant firstly canvasses the plain meaning of clauses 67 and 68 of the Agreement.
The Applicant notes that Clause 68 states that an employee will be entitled to overtime where they work in excess of their ordinary hours and that overtime is calculated on a daily basis.[9]
Firstly, the Applicant argues that Clause 67 of the Agreement “does not explicitly or impliedly exclude any employee group, including casual employees.”[10] The Applicant therefore contends that clause 67 sets the ordinary hours of casual employees.[11]
From this conclusion, the Applicant reasons that as there is no agreement between the Respondent and the “employees concerned”, defined by the Applicant to mean casual porters, and sub-clause 67.1 applies. This would mean the ordinary hours of casual porters are 8 hours in a day.
The Applicant then turns to wider context of the Agreement. The Applicant states that it is clear through provisions in the Agreement that “daily span of hours (outlined at subclause 67.1) and weekly span of hours (outlined at subclause 67.3) would apply to casual employees for the purpose of determining overtime entitlements.”[12]
The Applicant notes that the Agreement explicitly contemplates that casuals are entitled to overtime in certain circumstances.[13] The Applicant points to clause 28.3 and clause 56.1.16 which state, respectively:
28.3 Casual employees will receive a 23% loading in addition to their base rate of pay. This loading will be paid in addition to any applicable penalty rates, overtime payments or allowances
56.1.16 For casual employees - the total hours, other than overtime, worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year.
The Applicant notes that other provisions of the Agreement, including for example, personal/carer’s leave, annual leave and termination of employment provisions include explicit exclusions for casual employees.[14] Clause 67 does not contain any such explicit exclusion.
The Applicant argues that in order for the Agreement to give effect to a sensible industrial outcome,[15] the daily ordinary hours of casual employees should be prescribed in the Agreement otherwise “the Respondent could roster a casual employee to work fifteen (15) hours on any given day, without the casual employee receiving any additional remuneration by way of overtime penalties.”[16] The Applicant argues that there should be both a daily limit on the casual’s ordinary hours as well as a weekly limit. The Respondent does not dispute that there is a weekly limit – they say that if a casual works over 38 hours in a week, they attract overtime.[17]
The Applicant argues that by saying that clause 67.1 does not apply to casuals, the Respondent interpreting clause 67 such that “parts of the same clause are selectively applied to casual employees, despite the clause providing no such distinction.”[18]
The Applicant argues that the Respondent’s contention that a casual employee’s ordinary daily span of hours is whatever hours they accept on given day would have the effect of implying a new term into the Agreement.[19] The Applicant submits that this term should not be implied into the Agreement as it is inconsistent with the accepted authority for when a term should be implied in a contract.[20]
Finally, the Applicant refers to the majority judgment of the High Court in Australian Communication Exchange Ltd v Deputy Federal Commissioner of Taxation (‘Australian Communication Exchange’) in which the Court considered the meaning of “ordinary time earnings” under the Clerical Employees Award of Queensland and whether that term applies to casuals. The Court necessarily provided comments on the question of overtime as well.[21] Their Honours stated:
The principal submission of the respondent is that all of the provisions in cll 4.1 to 4.5 of the Award refer to full time employees only: that in particular “ordinary hours of work” in cl 4.1 (“an average of 38 per week”) refer only to hours of full time employees. Several matters, the respondent submits, support this contention. Specific provision is made for the hours of part-time employees in cl 4.6(2) whilst none are specified for casual employees. This strongly suggests that the non-specific reference to hours in cl 4.1(1)(a) does not cover hours for part-time, and (by implication) casual employees. We would reject this submission. It may well be in the nature of casual employment that the hours of work for it are not rigidly specified long in advance. In practice here, the employees apparently changed the hours when it suited them and with the appellant's concurrence. Clause 4.7(3), which is concerned with casual employees, makes it clear that it is in respect of some hours only that overtime earnings are to be paid. This follows from the words, “all time worked outside the spread of ordinary working hours … shall be paid for at overtime rates … ”. The clause also makes it clear that there are to be payable to casual employees both ordinary and overtime rates of pay, and that the dichotomy between them will depend essentially upon when the hours are worked.
Nor is it remarkable, as the respondent contends, that a casual employee who works outside the ordinary spread of hours of work might receive overtime rates, that is overtime payments only, and that accordingly the employer will not receive any relief from payment of the charge percentage under s 19 of the Administration Act. The Acts in this respect defer to the Award. It is not unreasonable to assume that its makers were aware of the effect of the former. If anomalies thereby arise, other provisions of the Award either have been designed to compensate for them, or no doubt will be. It is important to keep in mind that it is not the task of this Court, even if it were achievable, to rewrite the Award, or to venture into its crevices to try to discover whether, on its proper construction, it achieves parity between all workers.
It is only partly right for the respondent, and, ultimately does not assist in the resolution of the appeal, to submit that the Award does not prescribe the ordinary hours which an employer must offer, or a casual employee must work or be willing to work. What the Award does specify is the spread of hours within which an employee may work for ordinary rates of pay. The fact that no work need necessarily be performed within those hours does not alter their quality as ordinary hours, or the nature of the rates of pay, and therefore earnings that they are to attract.
(emphasis added)
The Applicant argues that the reasoning in Australia Communication Exchange, despite being a case concerning interpretation of an Award, is apposite to the current dispute.
Respondent Submissions
The Respondent’s starting point in interpreting the Agreement is clause 28.1 which outlines the patterns of work for casual employees: “employed on an irregular basis, with no set routine or work pattern (i.e., hours of work varying from week to week, with inconsistent starting or finishing times)”.[22]
The Respondent’s argument is that a casual’s daily ordinary hours are those which the casual accepts for their shift. The Respondent’s argument is that a plain reading of the phrase “hours of work varying from week to week” would mean a casual’s ordinary hours cannot be fixed to a roster.[23]
The Respondent argues that Clause 67.1 must be construed in context with the rest of clause 67. Clause 67 deals broadly with “consultative processes” to be established by the Respondent including the processes for implementation of the 38 hour week.[24] The Respondent submitted that clause 67 is plainly intended to deal with “hours of work and conditions surrounding such implementation of rostering arrangements for full-time employees who are subject to the 38 hour a week rostering arrangement.”[25] I note in reaching this conclusion, the Respondent referred to the corresponding clause in the predecessor Agreement. It would not be appropriate for me to place weight on that extrinsic evidence unless I have first concluded that the language of the clause is ambiguous.
The Respondent notes difficulties with the Applicant’s interpretation of the clause. Namely, casual employees are not subject to a roster but are instead offered shifts (which they can accept or decline).[26] Clause 67.1 notes that employee representatives must be notified in writing within 14 days of commencement of work if an arrangement for ordinary hours exceeds 8 on one day. The Respondent argues that a casual can work up to 12 hours without attracting overtime penalties.
The Respondent argues that Clause 67.1 should not apply to a casual as it would create an unworkable result because a casual employee is not subject to a roster and the “offer of hours to an individual casual does not involve a ‘majority of employees concerned’”. The Respondent argues that the requirement to provide 14 days’ notice to the individual casual employee is inconsistent with the Rostering Principles in Schedule 2 of the Agreement. Given casuals are offered shifts which are last-minute, it would be impractical for the employer to provide 14 days’ notice to the casual.
Conclusion
I note “Ordinary Hours” is defined in the Glossary of the Agreement to mean “the minimum number of hours an employee must work on average each week. Ordinary hours do not include overtime.” I note that ordinary hours are defined on a weekly basis. The key phrase in the definition is “must work”. “Must” is defined in the Macquarie Dictionary to mean “indicating obligation or necessity”. The ordinary meaning of that phrase is the minimum hours which the employee is compelled or obliged to work.
This phrase should be read in conjunction with Clause 28.1.3 which states that casual employees are “are free to refuse offers of work at any time due to other commitments”. Given casuals are free to decline offers of work “at any time” if they have other commitments, there is no set weekly minimum for which they “must” work. However, once the casual has accepted a shift, then the number of hours in that shift is minimum number of hours which the casual “must work”. In short, the plain meaning of “ordinary hours” with respect to casuals is that the number of hours of the shift which the casual accepts to work.
I note that Clause 67 refers generally to “employees” rather than specific types of employees.
Clause 24.1 of the Agreement distinguishes between four types of contracts for employees – full-time, part-time fixed-term and casual.
Clause 24.2 of the Agreement states: “Unless otherwise specified in this Agreement, the terms and conditions of employment detailed in this Agreement apply to all employees regardless of the basis on which they are engaged.”
In my view, Clause 67 must be read subject to clause 24.2. The Respondent’s argument is that Clause 67 does not prescribe terms or conditions of employment for casual employees but instead is a clause dealing with rostering procedures and consultative processes for full-time employees. I note the title of clause 67 is “Hours of Work”. In my view, the clause cannot be read as merely describing rostering and consultative processes for full-time employees. This is not just because the clause has no explicit exclusion for casual employees, which is a relevant consideration, but also because clause 67 contains provisions which the Respondent clearly intends to apply to every employee, such as:
67.6 Employees are required to observe the nominated starting and finishing times for the workday, including designated breaks to maximise available work times.
67.7 The ordinary starting and finishing times of various groups of employees or individual employees may be staggered.
67.8 Preparation for work and cleaning up of the employee's person will be in the employee's time except where the employee undertakes very dirty work or works with hazardous or toxic substances.
On the plain meaning of clause 67, in conjunction with clause 24.2, the whole clause can be taken to apply to all employees, including casuals.
However, this does not resolve the dispute.
Specifically, it must be considered whether clause 67.1 sets a limit for daily ordinary hours worked for a casual without attracting overtime.
While the decision in Australian Communication Exchange provides useful guidance about a casual employee’s entitlement to overtime, it is not wholly applicable. It involves the interpretation of an Award where it was stated that for casual employees “All time worked outside the spread of ordinary working hours or in excess of 8 in any one day…” will attract overtime.[27] In that case, the majority noted that the Award did not prescribe ordinary hours but instead prescribed a spread of hours in which the casual employees may work and receive pay ordinary time pay, for example from 6:30am to 6:30pm Monday to Friday.[28]
Clause 67.1, in my view, does not prescribe the “spread” of ordinary working hours. The clause instead defines when the employer must seek agreement from employees to roster employees on longer shifts.
Clearly the phrase “subject to the following” in Clause 67.1 sets conditions for when shifts up to 12 hours can be worked without overtime penalties. “Subject to” is defined in the Macquarie Dictionary to mean “dependent or conditional upon”. If the phrase is taken to mean “subject to the following conditions being met”, then if those conditions are not met, then ordinary hours up to 12 hours attract overtime penalties. That is, once a casual’s ordinary hours exceed 8 hours on one day, and no agreement has been reached regarding the arrangement and 14 days’ notice has not been given, then at that point in time, the relevant conditions have not been met. Once the conditions have not been met, then the Respondent must pay overtime penalties. Therefore, to an extent, I agree with the Applicant’s interpretation.
However, I disagree regarding the Applicant's interpretation of what “employees concerned" means. The Applicant submits that the employees concerned in this scenario would be the whole cohort of casual porters. Given, under the Agreement, the ordinary hours of casuals are those hours which a casual accepts to work, then theoretically every casual porter could have wildly varying hours. For a casual employee, ordinary hours are those which the individual employee accepts. The only “employee concerned” with an arrangement of hours where the ordinary working hours on any day is over 8 hours is the casual employee who accepts the shift. Therefore, in my view, the agreement should be between the business and that employee. I note the Agreement refers to plural employees, however in my view it is not inconsistent with the Terms of the Agreement that there be only one employee concerned.
Regarding the requirement to provide notice in writing, I note the Respondent has stated that this poses a problem which makes it impractical offer shifts to casuals. I would note firstly that in Schedule 2 of the Agreement it states that if there an inconsistency between the Rostering Principles and the Agreement, terms of the Agreement will prevail. Secondly, it is worth examining the meaning of the phrase “within 14 days of commencement of work under such arrangement” means. It would have been ideal if the Agreement used a clearer phrase than “within 14 days” such as, “at least 14 days before commencement”. The phrase “within 14 days of commencement” could be interpreted to mean either 14 days before the commencement of the arrangement or 14 days after the commencement of the arrangement. I note that in clause 76.5 of the Agreement, it is stated that rosters will be provided 14 days in advance. In context, it is clear that the reference to “within 14 days” in clause 67.1 means 14 days in advance of the arrangement of hours.
Therefore, I find that on a plain reading of the Agreement, a casual will attract overtime if they agree to work a shift over 8 hours, meaning their ordinary hours are over 8 hours, and the employee representatives do not receive 14 days’ notice in advance of the arrangement of hours. I appreciate the Respondent’s argument that this would make it difficult to schedule casuals for longer shifts, as casuals are usually offered shifts less than 14 days before the shift is to start. However, ultimately, where the plain meaning of the Agreement is clear, it would not be appropriate to bend that meaning to fit with the usual processes of Respondent. If giving notice in writing 14 days in advance is onerous when scheduling casuals to work longer shifts, then I suggest the parties discuss this matter in negotiations for the next Agreement.
Accordingly, I find that the answer to the question for recommendation is:
Is a casual employee entitled to overtime penalties when they work more than 8 hours on any given day? Including but not limited to circumstances where:
1.A casual employee is offered and accepts to work a shift above 8 hours; and
2. A casual employee accepts a shift of fewer than 8 hours and, during the shift,
is offered and then works additional hours, bringing their total hours for the day above 8
Yes, but only if the casual employee agrees to the shift and if there is no written notice 14 days in advance of the arrangement of hours.
The dispute should be considered resolved.
DEPUTY PRESIDENT
[1] Clause 23 of the Agreement
[2] Respondent Submissions [2]
[3] Attachment A to Respondent Submissions.
[4] Respondent Submissions [43].
[5] Applicant Submissions [20]
[6] Respondent Submissions [47]
[7] AMWU v Berri Pty Ltd[2017] FWCFB 3005.
[8] James Cook University v Ridd [2020] FCAFC 12.
[9] Applicant Submissions [18].
[10] Applicant Submissions [22]
[11] Ibid
[12] Ibid [25].
[13] Ibid [26].
[14] Ibid [28].
[15] Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [96]
[16] Applicant Submissions [32].
[17] Respondent Submissions [47].
[18] Ibid [35].
[19] Ibid [36].
[20] Applicant Submissions [36]-[37].
[21]Australian Communication Exchange Ltd v Deputy Federal Commissioner of Taxation [2003] HCA 55 (“Australian Communication Exchange”)
[22] Respondent Submissions [12].
[23] Ibid [26].
[24] Ibid [30].
[25] Ibid [36].
[26] Ibid [37]
[27] Australian Communication Exchange [22].
[28] Australian Communication Exchange [37].
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