Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v AKD Queensland Pty Ltd
[2023] FWC 1292
•14 JUNE 2023
| [2023] FWC 1292 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
AKD Queensland Pty Ltd
(C2022/8280)
| DEPUTY PRESIDENT LAKE | BRISBANE, 14 JUNE 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (the Applicant) and AKD Queensland Pty Ltd are in dispute about the rate of pay paid to an employee when they work overtime on a public holiday. The relevant instrument that applies is the AKD Queensland Pty Ltd Caboolture Enterprise Agreement 2022 – 2026 (‘the Agreement’).
On 15 December 2022, the CEPU filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to deal with the Dispute.
Following an unsuccessful conciliation conference, I made directions and listed the Dispute for arbitration. Both parties filed and served submissions in accordance with my directions. I am satisfied that I have jurisdiction to arbitrate the Dispute. There is no dispute from the parties in determining this matter on the papers.
Outline of the Dispute
Clause 2 of Attachment lC provides that ordinary hours of work are an average of 38 hours per week over a 28-day roster cycle. However, employees are rostered to work a total of 168 hours per roster cycle, working shifts of up to 12 hours in duration. The rate of pay is loaded to include payment for the additional 16 hours of overtime per roster cycle. Any hours worked in excess of 168 hours over the 28-day roster cycle are paid as overtime hours in accordance with Clause 6.3 of Attachment lC.
Mr Hunziker works for the Respondent as a 24/7 shiftworker pursuant to Attachment lC of the Agreement. On 3 October 2022, there was a gazetted public holiday. Mr Hunziker worked a 12-hour day shift on that day from 5.00am to 5.00pm. Mr Hunziker had not been rostered to work any hours on this day. Mr Hunziker had worked in excess of an average of 38 hours per week and in excess of the rostered hours of 168 hours over the 28-day roster cycle.
The change of roster was a result of the Respondent securing a significant amount of ongoing work for the site that required greater flexibility from the maintenance employees who, prior to their inclusion in Attachment 1C, were working pursuant to Attachment 1B to the 2016 Agreement.
A memorandum of understanding provided that:
“Where there is an inconsistency between an express provision of this MOU and a provision in the Agreement, the provisions of this MOU shall prevail to the extent of the inconsistency.”
Attachment 4 to the Agreement provides:
“Maintenance workers, in both mechanical and electrical trades, covered by Attachment 1B Engineering Classifications, will move to a 24/7 12-hour roster. The shift roster and related terms and conditions will be the same as that for the Kilns and Boilers, as set out in Attachment 1C of the Agreement, other than the rates of payment that will be as set out in Attachment 1B of the Agreement.”
The Parties reached an agreement on or around 21 May 2021 and the changes were documented in a Memorandum of Understanding and added as an attachment to the relevant agreement, this was approved by the Commission.
Question for determination
The dispute relates to the interpretation of public holiday provisions and whether they are applicable to maintenance employees. The question to be determined is:
“Do clauses 6 and 7 of Attachment 1C of the AKD Queensland Pty Ltd Caboolture Enterprise Agreement 2022 apply to engineering employees who are employed to work a continuous 24/7 shift roster such that public holidays are paid for at the rates set out in clauses 6.3 and clause 7 of Attachment 1C only, to the exclusion of clause 8.19.4 of the Agreement?”
The provisions of the Agreement are relevant to the Dispute are set out below.
Relevant provisions of the Agreement
Attachment 1A(4) provides information regarding working overtime on a public holiday.
Where a day worker covered by Attachment A is required to work overtime on any Saturday, Sunday or public holiday, and where such overtime is outside the scope of that covered by clause 8.14.3 (a), (b) and (c), such employee shall be entitled to:
(a)Where in excess of 6 hours overtime is to be worked, an unpaid meal break of no less than 30 minutes and not more than one hour not later than 6 hours after the commencement of duty.
(b)Where in excess of 9.5 hours overtime is to be worked (including overtime referred to in clause 8.14.4(a)) a further 30-minute meal rest/meal or crib break with no deduction of pay; and
(c)A further 30-minute rest/meal or crib break for each further 4 hours worked where such overtime is to continue beyond the respective 4 hour period, with no deduction of pay in respect to such break.
The Company and an employee may agree to any variation of this clause to meet the circumstances of the work in hand. The Company is not required to make any payment in excess of or less than what would otherwise be required under this clause.
Attachment 1B sets out the wages and conditions for Engineering classifications, which include the maintenance workers.
6. 5 Day Roster Cycle — Maintenance Only
On the five-day roster, the weekend forms part of the working week and two designated days off are had during Monday to Friday.
The roster workers receive the rest pause described in Attachment 1B clause 3.1.2, the meal break described in Attachment 1B clause 3.2.3 and overtime is to comply with clause 8.13.6 of the Agreement.
The roster provides that the Public Holidays in clause 8.19 are non-working days; however, can be worked on mutual agreement.
When a rostered day off falls on a public holiday as per Clause 8.19, then one day’s annual leave is accrued.
If working Saturday or Sunday as part of their rostered working days; they are paid 8 hrs normal ordinary rates plus 8 hrs OT single.
The normal annual leave provision applies to this roster as per Clause 8.14
Attachment 1C was amended to specifically apply to employees covered by Attachment 1B Engineering Classification who are employed to work on a continuous 24/7 shift roster. Attachment 4 incorporated the Memorandum of Understanding into the Agreement. It states:
1. Application
The terms and conditions contained in Attachment 1C only apply to boiler attendants, kiln attendants and Engineering employees covered by the Attachment B -Engineering Classifications who are employed to work on a continuous 24/7 shift roster. (24/7 Continuous Shift Workers)
2. Hours of Work
Ordinary hours of work will be an average of 38 hours per week over a 28-day roster cycle (Ordinary Hours).
Employees will be required to work a total of 168 hours per roster cycle, working shifts of up to 12 hours in duration. The additional 16 hours per roster cycle consist of overtime hours (Rostered Overtime), payment for which has already been incorporated into the employee's
4.Rates of Pay
An employee will be paid the following Weekly Rate of Pay for each week worked. The weekly Rate of Pay is an average weekly earnings calculated so employees are paid consistently from week to week over their continuous shift.
The Ordinary Hourly Rate of Pay is an employee's hourly rate of pay based on an average of 38 hours per week. The Ordinary Hourly Rate of Pay is used to calculate the 24/7 Continuous Shift Allowance and leave entitlements of 24/7 Continuous Shift Workers.
The applicable level is based on the Timber Production pay levels set out in part 2 of Attachment 1A for boiler and kiln attendants, being LS and L4 respectively, and part 2 of Attachment 1B for Engineering employees.
6.Overtime
Overtime is any time that is worked:
(a) Outside the employee's rostered hours; or
(b) In excess of 168 in a 28 day roster cycle .
Employees may be required to work reasonable overtime, including work on Saturday, Sunday and/or public holidays.
An employee who works overtime (as defined in clause 6.1} will be paid double time calculated on their Ordinary Hourly Rate of Pay, for each overtime hour worked. For the avoidance of doubt, overtime under this clause 6.3 will not be paid on Rostered Overtime.
7.Public holidays
An employee who is:
(a) rostered to work on a public holiday, and works on the public holiday, will be paid an additional 12 hours at their Ordinary Hourly Rate of Pay;
(b) rostered to work on a public holiday, but does not work on the public holiday, will be paid their usual 12 hours at their Ordinary Hourly Rate of Pay only; or
(c) not rostered to work on a public holiday, will be paid 12 hours at their Ordinary Hourly Rate of Pay only.
Attachment 4 - Shift Change - MOU sets out the changes to shift arrangements for various categories of employees and in respect of maintenance employees sets out the following.
Maintenance
Maintenance workers, in both mechanical and electrical trades, covered by Attachment 1B Engineering Classifications, will move to a 24/7 12-hour roster. The shift roster and related terms and conditions will be the same as that for the Kilns and Boilers, as set out in Attachment 1C of the Agreement, other than rates of payment that will be as set out in Attachment 18 of the
Agreement.The calculation of the shift allowance is set out in Appendix 1 below
Note the following key points
The roster is made up of 152 ordinary hours plus 16 hours of overtime . Overtime is paid at the rate of double time or 200%.
Ordinary hours worked on night or afternoon shift or on a Saturday or Sunday are paid in accordance with continuous shift provisions of the Agreement, as set out in Appendix 1 below
Night or afternoon shift is paid at the rate of 115%. Ordinary hours worked on a Saturday are paid at the rate of 150%. Ordinary hours on a Sunday are paid at the rate of 200%.
Remuneration will be averaged over the 4 week roster cycle and paid in equal weekly amounts, other than for items noted below.
Public holidays will not be included in the weekly average but rather will be paid in accordance with the Agreement as they fall.
Employees working this continuous shift roster over 7 days of the week will receive an additional 38 hours of annual leave. Annual leave will attract the shift allowance.
The shift allowance will not be paid on personal leave or long service leave.
Meal breaks will be paid in accordance with the AgreementA fatigue management plan will be introduced via the sec for this roster. Some specific roles will be required to work alternate shift patterns as agreed.......
Application
The conditions agreed in this Memorandum of Understanding are to be read in conjunction with the Agreement
Where there is an inconsistency between an express provision of this MOU and a provision in the Agreement, the provisions of this MOU shall prevail to the extent of the inconsistency.
It is the intention of the parties that the conditions of this MOU will be incorporated into the next Agreement effective 2022.
CEPU’s Submissions
The Applicant submits that the answer to the question for arbitration is "no".
The Applicant submits that Engineering employees who are required to work overtime on a public holiday, which is in excess of their rostered 168 hours per 28-day roster cycle are entitled to be paid double the double time rate in accordance with Clause 8.19.4 of the enterprise agreement.
Attachment 4 Shift Change - Memorandum of Understanding of the enterprise agreement provides that "Public Holidays will not be included in the weekly average but rather will be paid in accordance with the Agreement as they fall". (See Page 92 of the enterprise agreement).
This provision falls under the heading "Maintenance" in Attachment 4. No such provision exists for workers other than maintenance workers. For all other workers, who may be subject to Attachment 4 public holidays are paid in line with the Agreement based on the calendar day a shift is rostered to start.
Clause 6 of Attachment lC to the enterprise agreement deals with Overtime generally. Sub clause 6.1 provides that overtime is any time that is worked outside the employee's rostered hours or in excess of 168 hours in a 28-day roster cycle. Sub-clause 6.2 indicates that employees may be required to work reasonable overtime, including work on Saturday, Sunday and/or public holidays. Sub-clause 6.3 indicates that overtime will be paid at double time.
Clause 6 as a whole does not specifically deal with payment on a public holiday. The maxim "generalia specialibus non derogant" applies as an aid to construction. This means that where there is a conflict between general and specific provisions, the specific provisions prevail. In that regard, Clause 7 of Attachment lC deals specifically with public holidays.
Section 7.1 (a) provides that an employee who is rostered to work on a public holiday, and works on the public holiday, will be paid an additional 12 hours at their Ordinary Hourly Rate of Pay. However, it is clear that for Engineering employees, public holidays are "not included in the weekly average", meaning that the circumstance envisaged by sub-clause 7.1 (a) would never arise for Engineering employees.
Similarly, sub-clause7.1 (b) which provides for payment of 12 hours at the Ordinary Rate of Pay if an employee is rostered but does not work on a public holiday would also not arise for Engineering employees as public holidays do not form part of their rostered 168 hours per 28-day period.
Subclause 7.1 (c) provides for payment of 12 hours pay at the Ordinary Hourly Rate of Pay where an employee is not rostered to work on a public holiday.
Clause 7 which specifically deals with payment for public holidays therefore does not deal at all with the circumstance where an Engineering employee is called upon to work an overtime shift on a public holiday.
Clause 1.4 of Attachment lC provides:
"The terms and conditions contained in Attachment lC prevail over any other terms and conditions contained in the body of this Agreement to the extent of any inconsistency.
The Applicant submits that as Clause 7 of Attachment lC which specifically deals with public holidays does not set out payment to be made for overtime worked on a public holiday for Engineering employees, then the payment set out in 8.19.4 applies. Clause 8.19 of the enterprise agreement deals specifically with public holidays. Clause 8.19.4 provides for all time worked on public holidays outside of the ordinary starting and ceasing for the day of the week on which such holiday falls shall be paid for at double the double time rate.
In accordance with Attachment 4 of the Agreement, Engineering employees are not rostered any working hours on public holidays as those hours do not form part of their 168 hours over a 28- day period. Therefore, all hours worked by Engineering employees fall outside of the ordinary starting and ceasing times on public holidays, entitling them to be paid double the double time rate when they work overtime on a public holiday.
This is clearly not the case for other employees whose rosters can include rostered hours on a public holiday in accordance with Attachment 4.
Attachment 4 – Memorandum of Understanding
Up until mid-2021 Engineering employees did not work 24/7 continuous shift work but worked in accordance with rosters and terms and conditions as set out in Attachment 18. A Memorandum of Understanding (MOU) was agreed between the parties in 2021. Subsequently, the then AKO Queensland Pty Ltd Caboolture Enterprise Agreement 2018-2022 was varied to include the MOU as Attachment 4.
That MOU remains in the current enterprise agreement as Attachment 4.
Prior to the MOU and the introduction of 24/7 continuous shift work, Engineering employees had always been paid additional penalty rates for working on public holidays, that is, the penalty rates for working on a public holiday were in excess of the penalty rates applying to overtime worked at other times.
It was never explained to Engineering employees that those additional penalty rates for working on a public holiday would no longer apply. It was not explained prior to the MOU being agreed, it was not explained prior to the previous enterprise agreement being varied and it was not explained as part of the approval process for the current enterprise agreement. Consequently, Engineering employees have remained of the view that they are entitled to additional penalty rates when they work on a public holiday.
The effect of the interpretation by the Respondent is that Engineering employees are not paid additional penalty rates when they work on a public holiday.
Engineering employees are paid an average weekly rate of pay based on the average of 168 hours over a 28-day period in accordance with Clause 4 of Attachment lC to the enterprise agreement. Any time worked outside of those 168 hours is paid in addition to the weekly rate of pay. Engineering employees are paid an additional day's pay in any week that a public holiday falls in accordance with sub-clause 7.l(c).
As an example, CEPU member Mr Eric Hunziker, worked a shift on 3 October 2022, which was the gazetted Queen's birthday public holiday. Mr Hunziker was not rostered to work any hours during that particular week. Had Mr Hunziker not worked any hours during that week, he would have received his weekly pay, plus an additional 12 hours pay for the public holiday in accordance with sub-clause 7. l(c). Mr Hunziker was paid double time for work performed on the public holiday. Had Mr Hunziker worked overtime on any other day in that week, he would have received the same amount of pay for the week that he received for working on the public holiday, however, he would have had the opportunity to spend the public holiday with his family.
As indicated, Engineering employees have always had the view that they were entitled to additional payment when they work on a public holiday, and it was never explained that this would not be the case when they agreed to become 24/7 continuous shift workers. Had employees been aware of this, it is likely that they would not have agreed to either the MOU, the variation to the previous enterprise agreement, or the current enterprise agreement.
It is noted that in all other circumstances, Engineering employees are paid additional penalty rates when they perform work on a public holiday which are in excess of the penalty rates paid for overtime on days which are not public holidays.
Conclusion
The Applicant submits that the answer to the question for arbitration is "no".
The Applicant submits that neither Clause 6 nor Clause 7 of Attachment lC deals with the payment of overtime rates on public holidays for Engineering employees and that Clause 8.19.4 is therefore not excluded and applies when Engineering employees work overtime on a public holiday.
Unlike other employees covered by Attachment lC, public holidays are not part of the 168-hour roster over a 28-day period. For other employees, work may be rostered as part of their 168 hours on a public holiday. Accordingly, neither Clause 6 nor Clause 7 deal with payment for overtime worked on a public holiday for Engineering employees. In all other circumstances, overtime worked on a public holiday by Engineering employees attracts additional penalty rates.
It was never explained to Engineering employees when they agreed to the 24/7 continuous shift roster that they would not receive additional penalties for performing overtime work on public holidays.
On that basis, it is submitted that Engineering employees who work overtime on a public holiday are entitled to receive double the double time rate for such work in accordance with Clause 8.19.4.
AKD Queensland Pty Ltd submissions
The Respondent submits the answer is “Yes” and that clauses 6 and 7 apply to public holidays, whether worked or not and whether worked as rostered time or overtime, to the exclusion of clause 8.19.4 of the AKD Queensland Pty Ltd Caboolture Enterprise Agreement 2022.
Until the changes with the move to Attachment 1C terms and conditions, the provisions of Attachment 1B which in turn referred to clause 8.19 of the Agreement, applied to maintenance employees. From June 2021 with the change to a 24/7 12-hour continuous shift roster, employees’ terms and conditions of employment were covered by Attachment 1C.
Attachment 1C in its terms provides for payment for public holidays and the payment of overtime when hours are worked in excess of 168 hours in the cycle, or they work an un-rostered overtime shift.
Clause 4.1 of Attachment 1C provides that an employee is to be paid the weekly rate of pay being an average of weekly earnings calculated so employee is paid consistently from week to week over their continuous shift. Attachment 1C does not otherwise reference the averaging of remuneration. That is set out in Attachment 4 which is the Memorandum of Understanding and simply provides that the remuneration is averaged over the 4-week roster cycle and paid in equal weekly amounts, excluding the items set out below. Public holidays are then referred to as being paid in accordance with the Agreement. The Agreement, as it applies to maintenance employees, is set out in Attachment 1C.
Other workers referred to in Attachment 4 who also had changes to the working arrangements, were not transferred to coverage by Attachment 1C. Their terms and conditions of employment continue to apply.
Clause 6 of Attachment 1C provides for the working of overtime on a public holiday (clause 6.2) and that where overtime is worked it will be paid for at double time (clause 6.3). It applies to public holidays where the work on a public holiday is done outside the employee’s rostered hours (as is the case in the matter in dispute) or in excess of 168 hours in a roster cycle.
Attachment 1C makes provision for the working of overtime on public holidays whether as part of rostered hours or as overtime. Clause 1.4 states that it prevails over any other terms and conditions contained in the body of the Agreement to the extent of any inconsistency. Clause 18.9.4 does not and cannot apply.
Clause 7 of Attachment 1C provides for what is to be paid for a public holiday that is either worked as part of the employee’s roster of 168 hours or is not required to be worked if rostered or is not rostered to work and does not work on that day. Clause 6 provides for what is to be paid for a public holiday that is worked outside an employee’s rostered hours or in excess of a 168 in a 28-day roster cycle. Clauses 6 and 7 provide for all possible outcomes as they apply to an employee with respect to a public holiday:
Rostered to work and works – paid an additional 12 hours (effectively double time). The additional payment is not included in the average paid but is paid separately.
Rostered to work but not required to work – paid their usual 12 hours at ordinary time rates.
Not rostered to work, paid 12 hours at their ordinary Hourly rate of pay only.
Not rostered to work, but works overtime, paid double time in addition to the 12 hours paid for not being rostered to work – triple time. Not included in the average and paid separately.
It is incorrect to assert that clause 7.1(b) does not apply – public holidays are rostered as part of a 24/7 continuous roster. The applicant’s assertion that public holidays are not part of the roster is incorrect. It is how they are accounted for and paid that is separately provided for by Attachment 1C.
It is incorrect to assert that the employees did not know or understand the effect of Attachment 1C as it applied to public holidays. The way payment for public holidays was to be accounted for was part of the consultation process; there was a claim for payment made in May 2022 following Easter 2022 and the company made clear its position; the parties entered into negotiations for an enterprise agreement after the employees became aware of the application of Attachment 1C and the respondent’s interpretation. The terms of the 2022 Agreement, as they applied to the maintenance employees with respect to public holidays were known by them.
Further, the terms of clause 8.19.4 do not apply to continuous shift workers over a 24-hour roster. That clause only applies when the overtime being performed occurs outside the ordinary start and finish times for the day of the week on which the work is being performed. It does not reference the roster or hours of work of individuals but references the ordinary start and finish times for the day of the week on which work is performed. It is acknowledged this may have had application when maintenance employees were working a 5 day or 6-day roster pursuant to Attachment 1B if they were required to work overtime on a public holiday outside the ordinary start and finish times for the day of the week on which the public holiday fell. The wording of clause 8.19.4 does not support the conclusion contended for by the applicant.
Maintenance employees who work overtime on a public holiday are entitled to receive single time payment for the day plus double time payment for working overtime on a public holiday – triple time.
Consideration
Both parties agreed that the interpretation of the Agreement should be done through the Berri principles. The principles have been confirmed in James Cook University v Ridd (2020) 382 ALR 8 at [65]. These principles have been commonly accepted and will not be stated in depth. The key principles are that the enterprise agreement is to be read as a whole and in context using the ordinary meaning of the words used, the clause is to be read using a purposive approach rather than a narrow approach taking into account the industrial context and purpose. Furthermore, the context is not limited to the word of the instrument if there is another document associated with the instrument.[1]
In understanding the ordinary meaning of clauses 6 and 7 in light of reading the whole Agreement, it is understood as follows.
With the introduction of the continuous 24/7 rosters, the maintenance employees’ terms and conditions previously provided for in Attachment 1B were changed to be provided for under Attachment 1C (continuous Shift Roster 24/7). By the very nature of the continuous roster, the notion of ordinary starting and finishing times for the day of the week do not exist. When the maintenance employees were governed by Attachment 1B when they were working a 5 or 6 day roster, the application of Clause 8.19.4 would apply when the overtime undertaken occurs outside the ordinary start and finish times for the day of the week on which the work is being performed.
Attachment 1C outlines that any hours outside rostered hours or in excess of the 168 hours are regarded as overtime. Clause 6 and 7 of Attachment 1C specify the treatment of public holidays for the Maintenance employees following the agreement to move to a continuous shift roster. Clause 6 details that payment for a public holiday worked outside rostered hours or in excess of the 168 hours in the 28-day cycle would be paid at double time. Clause 7 makes specific reference to public holidays and the method of payment if public holidays fell during rostered hours depending if they were:
Rostered and required to work on the public holiday,
Rostered to work on the public holiday but does not work
Not rostered to work on the public holiday, but works on the public holiday
The employee in this matter was requested to work hours outside rostered hours. Clause 6 of the relevant attachment (1C) is specific in dealing with public holidays outside rostered hours. The clause in Attachment 1B Attachment 1C specifies the appropriate payment for a public holiday that is either worked as part of the employee’s roster of 168 hours or is not required to be worked if rostered or is not rostered to work and does not work on that day.
The Applicant asserts that clause 8.19.4 in the Agreement has force. However, once the employee and the rest of the maintenance employees moved onto a continuous roster this clause no longer had effect through Attachment 1C and as per clause 1.4:
"The terms and conditions contained in Attachment lC prevail over any other terms and
conditions contained in the body of this Agreement to the extent of any inconsistency.
There is no inconsistency between 8.19.4 of the Agreement as clauses 6 and 7 in Attachment 1C provide a comprehensive answer and the clause was no longer in effect once the employees moved to a continuous roster. There are no ordinary start and finish times and this clause no longer had effect through the operation of Attachment 1C. The two relevant clauses (cl 6 and 7) as mentioned above provide a complete answer to the treatment of public holidays for the maintenance worker now by agreement working a continuous roster.
Accordingly, I find that the answer to the question posed for arbitration is:
“Do clauses 6 and 7 of Attachment 1C of the AKD Queensland Pty Ltd Caboolture Enterprise Agreement 2022 apply to engineering employees who are employed to work a continuous 24/7 shift roster such that public holidays are paid for at the rates set out in clauses 6.3 and clause 7 of Attachment 1C only, to the exclusion of clause 8.19.4 of the Agreement?” YES
DEPUTY PRESIDENT
[1] James Cook University v Ridd (2020) 382 ALR 8 at [65].
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