Carol Gray v KDR Victoria Pty Ltd T/A Yarra Trams

[2017] FWC 1972

[2017] FWC 1972

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Carol Gray
v
KDR Victoria Pty Ltd T/A Yarra Trams
(C2015/8021)

COMMISSIONER GREGORY MELBOURNE, 7 APRIL 2017

Alleged dispute in relation to pro rata payments for a public holiday on a rostered day off for part-time employees.

Introduction

[1] This dispute has its genesis in an agreement by KDR Victoria Pty Ltd T/A Yarra Trams (“Yarra Trams”) and its employees to make available part-time work opportunities for its tram drivers, or what it describes as its “traffic employees.” The option of part-time work was apparently flirted with around 10 years ago, but was not able to be implemented in a way that was acceptable to the business and its employees.

[2] However, in more recent times it has been agreed that part-time work should be an available option and some employees, including the Applicant in this matter, Ms Carol Gray, have elected to move from working on a full-time basis to instead working part-time.

[3] This dispute was first notified in late 2015. At that time Ms Gray had a number of concerns about the entitlements associated with her part-time work arrangements. These concerned issues to do with annual leave, personal leave and make up pay. Those issues have apparently been able to be worked through between Yarra Trams and Ms Gray and resolved on an agreed basis. However, one issue remains outstanding in terms of her part-time work arrangements.

[4] The parties are covered by the Yarra Trams Enterprise Agreement 2012 - Operations (“the Agreement”). 1 The outstanding issue concerns the entitlement to payment for public holidays under the terms of the Agreement. Ms Gray works 3 full days on Sunday, Monday and Tuesday under her existing part-time work arrangement. However, she claims she is also entitled to payment for a public holiday that falls on any other day in the week. Yarra Trams rejects this claim on the basis that Ms Gray is not rostered to work on those days. This decision deals with that dispute.

[5] Ms Gray appeared on her own behalf. Mr David Moore, who is the Employee Relations Manager at Yarra Trams, appeared on its behalf.

The Submissions and Evidence

Ms Carol Gray

[6] Ms Gray makes reference in her submission to various provisions in the Agreement. They include the following extract from sub clause 13.2, which deals with part-time employment:

“13.2 Part-time employment

…

(c) Shift Work

A part-time employee engaged on shift work shall be entitled to the relevant shift work conditions provided by the relevant industrial agreement/award.

…

(e) Entitlements

A part-time employee shall receive the same annual leave, annual leave loading, long service leave and all other benefits as a full time employee in the same classification. Payment shall be made on a pro rate basis.” 2

[7] She also makes reference to the following provisions in clause 45 – Public Holidays:

“45.1 Entitlement

An employee will be entitled to the following public holidays without loss of pay:

(a) New Year’s Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day; and

(b) The following days, as prescribed in Victoria: Australia Day, Anzac Day, Queen’s Birthday, Melbourne Cup Day and Labour Day, on the day for which it is gazetted.

…

45.6 Non-accumulation of public holidays

(a) Days off granted for public holidays where the employee would be normally rostered off will be paid at single time rate and the time is not included for the calculation of overtime.” 3

[8] She also refers to an explanatory note entitled “Part Time Work Arrangement” 4 that was previously provided to her by Yarra Trams, which included an explanation about the entitlements to apply to employees engaged on a part-time basis. She submits it indicates she would receive the same leave entitlements and all other benefits applicable to a full-time employee, and she was not told she would not be paid for a public holiday falling on what she describes as “a rostered day off.”5

[9] She also submits that while the days of the week she works in her part-time work arrangement are Sunday, Monday and Tuesday she could be asked to work on another day, or could swap a shift on another day with another employee. Ms Gray also confirmed in answer to a question from the Commission that she had now agreed to work on a part-time basis on three days in each week, being Sunday, Monday and Tuesday, although she is occasionally asked to work on other days. However, she was “not keen to work on those days.” 6 She also acknowledged that this could only occur by agreement and she could not be compelled to work on any additional days.

[10] Ms Gray submits, in conclusion, that a part-time employee in her circumstances should be entitled to be paid for all public holidays that fall on any day in the week, and this should operate “pro rata.” 7 She continued to explain that by referring to pro-rata she was not claiming to be entitled to a full day’s payment for each public holiday that falls on a day she would not normally be working. She stated instead, “[i]t would be in proportion to days that I work.”8 She continued to explain that in her case she worked on three days out of five in each week in her current part-time work arrangement. Therefore, she was working three – fifths or 60% of a full-time week. She should therefore be paid 60% of the rate for a full day when a public holiday falls on a day she would not normally be rostered to work.

Yarra Trams

[11] Yarra Trams also makes reference, in response to Ms Gray’s submissions, to sub clause 45.6 in the Agreement, which states:

“45.6 Non-accumulation of public holidays

(a) Days off granted for public holidays where the employee would be normally rostered off will be paid at single time rate and the time is not included for the calculation of overtime.” 9

[12] It submits in response that this sub clause only applies to full-time employees, and that providing payment for a public holiday when it falls on a day when an employee is not rostered to work can only apply in the case of a full-time employee. In its submission this is because full-time employees work on five out of seven days in each week in a rotating roster in which each employee works over all seven days in the week during the course of each complete seven week roster cycle. By contrast a part-time employee only works on those nominated days in the week that have been agreed in advance.

[13] It next refers to the following extract in clause 13.2 which states:

“13.2 Part-time employment

(a) Definition

A part-time employee is a person employed to work reasonably predictable hours of work less than 38 ordinary hours per week.” 10

[14] It notes that in the case of Ms Gray she initially commenced working on a part-time basis in a fixed four day per week arrangement, but has since moved to a fixed three day per week arrangement. Those days are Sunday, Monday and Tuesday. It continues to submit that Ms Gray now contends that the four days in the week that she does not work are days when she is “rostered off work” 11 and, as such, she should be entitled to payment for any public holidays that fall on those days.

[15] It submits this interpretation is not what the Agreement intends. Ms Gray has, instead, contracted to work on only three days in the week in her current part-time work arrangement. She is not available to work on the remaining four days in the week and therefore cannot be said to be “rostered off” on those days. Sub clause 13.2 therefore does not apply.

[16] It reiterates that full-time employees have the benefit of the entitlement in sub clause 45.6 because they are required to work across seven days in the week in their full roster cycle, and therefore “there is a lost opportunity of not being paid at penalty rates for a public holiday when the public holiday falls on the day when they could be rostered to work but are rostered off on the day of the public holiday.” 12 In its submission the same “lost opportunity” does not exist for a part-time employee because they can never be rostered to work on days in the week, other than their nominated days.

[17] Yarra Trams does acknowledge that in some circumstances Ms Gray, or any other part-time employee, can work on another day in the week other than their nominated part-time work days. However, this can only occur when a part-time employee agrees to work additional hours, or agrees to swap shifts with another part-time employee. It has no ability to compel a part-time employee to work on a day other than the days that have been nominated to be their agreed part-time work days.

[18] It also submits that Ms Gray has not lost any entitlement to payment for a public holiday on a day she does not normally work, because no such entitlement to payment for work on that day existed in the first place.

[19] It also notes that it has now amended its part-time explanatory note provided to employees in response to the issues raised by Ms Gray. It also submits that to the best of its knowledge no other part-time driver has taken issue with the fact of not being entitled to the provisions of clause 45.6.

[20] Yarra Trams also made the following points by way of clarification. Firstly, Ms Gray is not employed under an Individual Flexibility Agreement as enabled by clause 9 of the Agreement, despite any suggestions to the contrary. It also notes it has now decided she comes within the definition of continuous shift work in the Agreement on the basis that she is regularly rostered to work on Sunday and Monday, being a day when public holidays often fall. This decision to deem her to be a continuous shift worker means she is entitled to an additional week of annual leave.

Consideration

[21] It is noted at the outset that Yarra Trams has acknowledged in its submissions that when introducing part-time work for its tram drivers both the Agreement and the explanatory materials it prepared for its employees could have dealt in more detail with the relevant entitlements that are to apply. It also points out that in the case of Ms Gray it has now acknowledged that she is considered to be a continuous shift worker, given the days in the week that she works, and as such she is entitled to an additional week of annual leave.

[22] The Commission is now required to determine this matter based on the applicable provisions in the Agreement that covers the parties. While neither party referred to it the Full Bench decision in Australasian Meat Industry Employees’ Union v Golden Cockerel Pty Limited[2014] FWCFB 7447 has recently confirmed at [41] the principles to be applied in interpreting an enterprise agreement or Award. It is not necessary in the context of the present matter to set out those principles in full detail. I am satisfied instead that the following are relevant to the determination of this matter:

“2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.” 13

[23] I have sought to apply these principles to coming to a decision in this matter.

[24] The following extracts from the Agreement are relevant to the determination of this matter. When read together I am satisfied that they can be said to have a plain meaning and are not ambiguous. They have been referred to already, in part, but it is useful at the outset to set out the part-time provisions in sub clause 13.2 in full detail:

“13.2 Part-time employment

(a) Definition

A part-time employee is a person employed to work reasonably predictable hours of work less than 38 ordinary hours per week.” 14

(b) Work arrangements to be agreed

The ordinary hours worked on any day shall not be less than 3 hours. Before an employee commences part time employment, the employee and Yarra Trams must agree in writing to the following:

(i) The duration of the part-time work arrangement.

(ii) The ordinary hours of work, including starting and finishing time (other than for shift workers) on each day of the week.

(iii) In the case of shift workers, the prescribed weekly hours and the ordinary hours of work including starting and finishing times on each of any day of the week.

(iv) The classification applying to the work to be performed.

The hours of work specified in writing in accordance with this sub-clause shall not be altered without the consent of the employee.

Provided that where a part-time employee agrees to work beyond his/her rostered hours, work performed in excess of the fixed number of rostered hours shall be paid at the ordinary hourly rate.

Provided that a part-time employee shall be entitled to penalty rates applicable to a full time employee of the same classification.

(c) Shift Work

A part-time employee engaged on shift work shall be entitled to the relevant shift work conditions provided by the relevant industrial agreement/award.

(d) Rate of Pay

A part-time employee shall be paid per hour one thirty eighth of the weekly rate prescribed for the classification in which the employee is engaged.

(e) Entitlements

A part-time employee shall receive the same annual leave, annual leave loading, long service leave and all other benefits as a full time employee in the same classification. Payment shall be made on a pro rate basis.”

(f) Other Conditions

The proportion of part time employees should not exceed:

(i) four percent of the total establishment number of Tram Drivers including Tram Driver/CSE trainees (full time equivalent); or

(ii) four percent of all non-driver classifications (full time equivalent).

No cap applies to part time employment granted to employees on the basis of genuine and special needs as provided by law.

Yarra Trams must ensure that the proportion of work available to part time employees on weekends is no greater than the proportion of employees working part time (calculated on a full time equivalent basis).

Where a part-time position is to be established, existing Yarra Trams employees shall be given the first opportunity to apply. 15

[25] The relevant parts of sub clause 13.2 are, firstly, those that make clear that agreement upfront is required between Yarra Trams and a part-time employee about “In the case of shift workers, the prescribed weekly hours and the ordinary hours of work including starting and finishing times on each or any day of the week.” 16

[26] In the case of Ms Gray those agreed days are Sunday, Monday and Tuesday in each week and it is understood she works a full day on each of those three days. On occasions she can also be asked to work additional hours on other days, although this can only come about with her agreement. This possibility is encompassed by the words in the sub-clause stating, “Provided that where a part-time employee agrees to work beyond his/her rostered hours, work performed in excess of the fixed number of rostered hours shall be paid at the ordinary hourly rate.” 17 It is also understood that a part-time employee is permitted to swap a shift with another part-time employee on a mutually agreed basis.

[27] Therefore, in the case of Ms Gray her agreed part-time work arrangements involve work on three specific days in the week, being Sunday, Monday and Tuesday. Those are the days on which she has contracted to work and is expected to be at work. By contrast, it is also agreed that she is not required to work on any other day in the week.

[28] This situation can be contrasted with that of a full-time employee, who has agreed to be rostered on five out of any seven days in the week. A full-time employee therefore has five days on which they are rostered on in any week, and two days on which they are rostered off. As indicated, this situation can be contrasted with that of Ms Gray, who has agreed to work on only three days in the week, and cannot be rostered to work on any other days. Therefore, she cannot be said to be “rostered off” on those days when she does not work. They are instead days on which it has been arranged by prior agreement that she will not be required to work.

[29] Sub clause 13.2(e) indicates that a part-time employee will receive the other benefits of a full-time employee, with payment being made on a pro rata basis.

[30] Clause 45.1 then sets out the entitlement to the 11 public holidays “without loss of pay.” 18 Sub clause 45.6 , “Non-accumulation of public holidays” then relevantly states:

“(a) Days off granted for public holidays where the employee would be normally rostered off will be paid at single time rate and the time is not included for the calculation of overtime.” 19

[31] The first thing to be said in response about these provisions is that the entitlement to the public holidays is “without loss of pay.” Ms Gray is clearly entitled to the benefit of a public holiday that falls on the three fixed days in the week that she works. She is either entitled to a day off without loss of pay on each of those days or, if she works, she is entitled to the applicable rate for work on a public holiday. However, her entitlement does not extend beyond this. She would not normally work on any other day in the week. Therefore, she does not incur any “loss of pay” when a public holiday falls on one of those days, because she would not be working and earning any income on those days.

[32] Sub clause 45.6 does not change this situation. I have already indicated that I am not satisfied Ms Gray can be considered to be “rostered off” on Wednesday, Thursday, Friday or Saturday in any week. The part-time work arrangement she has entered into does not enable her to be rostered to work on any of those days. Therefore, she cannot be said to be “rostered off” on those days. It follows that I am not able to accept that she has a public holiday entitlement in regard to any of those four days on which she is not required to work.

Conclusion

[33] I am satisfied, in conclusion, that the plain meaning of the relevant provisions in the Agreement intends that Ms Gray has an entitlement to public holidays on the days on which she has agreed to work in her part-time work arrangement being Sunday, Monday and Tuesday in each week. However, her entitlement does not extend beyond those days for the reasons indicated. Having come to this conclusion her application must therefore be dismissed.

COMMISSIONER

Appearances:

C Gray on her own behalf.

D Moore for the Respondent.

Hearing details:

2017.

Melbourne:

February 13.

 1   AE898299.

 2   Ibid at [13.2].

 3   Ibid at [45.1] and [45.6].

 4   Applicant’s outline of submissions, received 15 January 2017, at page 4.

 5   Ibid.

 6   Transcript at PN38.

 7   Transcript at PN50.

 8   Transcript at PN58.

 9   Above n 1 at [45.6].

 10   Ibid at [13.2].

 11 Respondent’s submissions, received 31 January 2017, at [7].

 12 Ibid at [11].

 13   Australasian Meat Industry Employees’ Union v Golden Cockerel Pty Limited[2014] FWCFB 7447 at [41].

 14   Ibid at [13.2].

 15   Above n 1 at [13.2].

 16   Ibid at [13.2(b)(iii)].

 17   Ibid at [12.3(b)].

 18   Ibid at [45.1].

 19   Ibid at [45.6].

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