Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Alcoa Portland Aluminium Pty Limited T/A Portland Aluminium
[2023] FWC 604
•3 APRIL 2023
| [2023] FWC 604 |
| 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
Alcoa Portland Aluminium Pty Limited T/A Portland Aluminium
(C2022/4898)
| DEPUTY PRESIDENT BELL | MELBOURNE, 3 APRIL 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
In the year 2021, Christmas Day fell on a Saturday. In that year, within the State of Victoria, there were public holidays falling on Saturday, 25 December 2021 (i.e. Christmas Day) and Sunday, 26 December 2021 (i.e. Boxing Day). In addition to those days, the Public Holidays Act 1993 (Vic) (PH Act) also appointed Monday, 27 December and Tuesday, 28 December 2021 as public holidays.
Since 2019, the PH Act has appointed 13 fixed days or dates as public holidays. The PH Act does not always appoint a day or days after Christmas Day and Boxing Day as public holidays but, rather, the appointment of those days as a public holiday in a given year depend upon whether Christmas Day is a Friday, Saturday or Sunday. Similar considerations apply if New Year’s Day falls on a Sunday. Conceivably, there may be up to 16 public holidays in Victoria as a result. In 2022, there were 15 public holidays.
A dispute has been raised by the applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or ETU), under the Portland Aluminium (Trades) Agreement 2021 (Agreement) against the respondent, Alcoa Portland Aluminium Pty Limited (Respondent).
The Agreement makes express provision for 13 public holidays.[1] The dispute between the parties concerns how, if at all, further holidays established by the PH Act (and not expressly listed in the Agreement) ought to be compensated.
The parties attended a conciliation of the matter before me and, as is commonly the case, engaged in further discussions directly between themselves. As those efforts were unable to resolve the dispute, the matter was set down for determination by arbitration. I am satisfied that the dispute provisions in the Agreement have been complied with and that the Commission is able to arbitrate the dispute. While the genesis of the dispute concerned some specific public holidays in late 2021, the dispute was not so confined.
The agreed question for arbitration was as follows:
“In the event that, in the State of Victoria, a public holiday is declared or prescribed on a day other than those set out in subclauses 17(a) and 17(b) of the Portland Aluminium (Trades) Agreement 2021, are employees engaged to perform shift work on such additional public holidays entitled to time off in lieu (or financial equivalent) in compensation for the performance of such work on that additional day?”
For the reasons that follow, my answer to the question is, with one qualification, “no”.
The ETU called as a witness Mr David Beasley, who is an employee of the Respondent and delegate of the union. The Respondent called two witnesses: Ms Courtney Alexander, Human Resources Manager for the Respondent; and Ms Narelle Burns, the Metals Manager for the Respondent. Each witness included in their respective statements various documents relied upon by the parties. Mr Beasley was briefly cross-examined. Neither witness for the Respondent was required for cross-examination.
I note that the factual matters in dispute were relatively confined and the factual disputes were more in the nature of what emphasis should be placed on material extraneous to the Agreement terms.
The Agreement and legislative background
The Agreement
The critical clauses in dispute for the Agreement are clause 9 and 17, although I will make reference below to other pertinent clauses.
Clause 9 is titled “Rates of pay and allowances”. Subclauses 9(a) to (b) are as follows:
“(a) General Principles
(i) The salaries and other payments expressed in this Clause provide for all circumstances, conditions of employment and hours worked with the Company under annualised salary arrangements. Accordingly, no allowances, loadings, penalties or premiums of any form will be paid, except where otherwise provided for in this Agreement.
(ii) The base salaries for each of the classifications in sub clause (b) below relate to the corresponding classifications and job descriptions set out in Appendix C.
(iii) The base salaries also include compensation for the working of reasonable additional unrostered hours, as and when required, to competently and efficiently perform the whole job.
(iv) The total salaries prescribed in sub clause (b) below also include a shift allowance in compensation, where applicable, for the following.
(1) In regard to all shift workers, all disabilities and disturbances associated with shift work and the working of regularly rostered shifts on weekends and public holidays.
(2) In regard to employees working the 12 hour x seven day continuous shift roster, compensation for the requirement to work a minimum of 168 hours as part of the normal roster in each four week cycle.
(3) In regard to employees working the 10 hour x seven day, day shift roster, compensation for the requirement to work a minimum of 160 hours as part of the normal roster in each four week cycle.
(4) In regard to employees working the weekday, day shift roster (as defined in sub clause (b) below), compensation for the requirement to work a minimum of 40 hours each week as part of the normal roster.
(v) The skill acquisition and training principles that underpin the classification structure below are set out in Appendix B.
(vi) Throughout this Agreement and subject to sub clause (b)(i) below, the following terms will apply.
(1) "Total Salary" relates to the sum of the employee's base salary and shift allowance (if applicable).
(2) "Full Pay" relates to the sum of the employee's total salary and any applicable allowances.
(b) Total Annual Salaries
(i)Employees will be paid a total annual salary according to their classification, shift pattern and associated allowances, as detailed in Table A, below. The parties recognise that the annual salaries outlined in this Agreement include a component to compensate employees for having no entitlement to a 'day off in lieu' for any public holiday falling within a period of approved long service leave.”
Table A (referred to in cl.9(b)(i) above) then lists the “Trade Base Salaries” for the various classification. Table B – “Trade Allowances” – then applies allowances to the base rates, depending upon a person’s classification within that table.
Table B is as follows:
From First Pay Period Commencing On or After: 1st Nov 2019 1st Nov 2020 1st Nov 2021 CLASSIFICATIONS Allowance Allowance Allowance Trades Day Work NA NA NA 12hr Shift 38.26% 38.26% 38.26% 10hr, Seven Day, Dayshift 26.98% 26.98% 26.98% Weekday Day Shift 11.36% 11.36% 11.36% Electrical Licence 3.12% 3.12% 3.12% Type “B” Gas Ticket 1.47% 1.47% 1.47% HV Switching 2.40% 2.40% 2.40% Work Delivery Coordinator (WDC) 3.90% 3.90% 3.90% Power Systems
Electrician’s 12hr Shift5.61% 5.61% 5.61%
There are “Notes” that follow under Table B. They are as follows:
“A. The above 26.98% shift allowance is applied from certification and is comprised of:
·A Shift Allowance of 26.5% of the Base Salary;
·A component equating to 0.36% of Base Salary to compensate for the requirement to work on Friday before AFL Grand Final Day; and
·A component equating to 0.12% of Base Salary to compensate for the requirement to work on Easter Sunday.
B. Employees employed as Trades Weekday Dayshift Roster are required to work either five 8-hour day shifts or four 10-hour day shifts, Monday to Friday (including public holidays that fall on rostered days).
In the event there is a change to the arrangement of the hours of work, no employee will have the 11.36% rate altered for the nominal duration of the Agreement.
C. In the event there is a change to the arrangement of the hours of work, which results in an employee being moved involuntarily to be a day worker role (attracting remuneration as per Table A and B" above), that employee will not have the 11.36% rate altered for the nominal duration of the Agreement.
D. The above 11.36% shift allowance is comprised of:
·A base Shift Allowance of 11% of the Base Salary; and
·A component equating to 0.36% of Base Salary to compensate for the requirement to work on Friday before AFL Grand Final Day.
E. The above 12hr Shift Allowance for Tradespersons A-E of 38.26% of Base Salary is comprised of:
·A Shift Allowance of 37.71% of the Base Salary;
·A component equating to 0.41% of Base Salary to compensate for the requirement to work on Friday before AFL Grand Final Day; and
·A component equating to 0.14% of Base Salary to compensate for the requirement to work on Easter Sunday.
The balance of cl.9 addresses various other matters, which are not as directly relevant.
In full, clause 17 is as follows:
“17. PUBLIC HOLIDAYS
(a) Prescribed Public holidays
An employee, will be granted the following public holidays on full pay: New Year's Day, Australia Day, Labour Day, Good Friday, Easter Saturday, Easter Sunday, Easter Monday, Anzac Day, Queen's Birthday, Friday before the AFL Grand Final, Portland Day, Christmas Day and Boxing Day.
(b) Substitution of Public Holidays
(i) (1) When Christmas Day is a Saturday or a Sunday, a holiday in lieu shall be observed on 27 December.
(2) When Boxing Day is a Saturday or a Sunday, a holiday in lieu shall be observed on 28 December.
(3) When New Year's Day, Australia Day or Anzac Day is a Saturday or a Sunday, a holiday in lieu shall be observed on the next Monday.
(ii) By agreement between the Company and the majority of employees covered by this Agreement, other days may be substituted for one or more of the days specified in sub clause (a) above.
(iii) Where substitute days are implemented pursuant to this sub clause, the day on which the public holiday actually falls, or would otherwise have fallen, will not be deemed a public holiday.
(c) Modifications to Public Holidays
Where in the State of Victoria a public holiday is declared or prescribed on a day other than those set out or provided for in sub clauses (a) or (b) above, that day shall constitute an additional public holiday for the purpose of this Agreement.
Where, in the State of Victoria, one of the days referred to in sub clauses (a) or (b) is removed from the list of prescribed public holidays, the Company will not be required to recognise that day as a public holiday.
(d) Shift Workers
Compensation for shift workers who are rostered to work on any of the public holidays specified above is provided for in the relevant shift allowance prescribed in clause 9.
(e) Part Time and Casual Employees
Part time and casual employees will only receive payment for those hours that fall on a public holiday (or substitute day) that they would have otherwise been rostered to work.
(f) Leave without Pay
An employee on approved leave or absence without pay will not be entitled to payment for any public holidays falling within that period of absence.”
The Public Holiday Act, Victoria
As summarised earlier, the PH Act currently appoints 13 fixed days or dates[2] as public holidays and, depending upon which day New Year’s Day, Christmas Day and Boxing Day fall, there may be up to a further three public holidays in a given year. Following amendments made to the PH in 2019, the public holidays currently expressly appointed by s.6 of that Act are:
“(a) 1 January (New Year's Day);
(b) the Monday after 1 January (New Year's Day) when New Year's Day is a Saturday or Sunday;
(c) 26 January (Australia Day) or the Monday after Australia Day when Australia Day is a Saturday or Sunday;
(d) the second Monday in March (Labour Day);
(e) Good Friday;
(f) the Saturday before Easter Sunday;
(fa) Easter Sunday;
(g) Easter Monday;
(h) 25 April (ANZAC Day);
(i) the second Monday in June (the day on which the anniversary of the birthday of the Sovereign is observed);
(ia) the Friday before the Australian Football League Grand Final;
(j) the first Tuesday in November (Melbourne Cup Day);
(k) 25 December (Christmas Day);
(ka) the Monday after Christmas Day when Christmas Day is a Saturday or the Tuesday after Christmas Day when Christmas Day is a Sunday;
(l) 26 December (Boxing Day);
(m) the Monday after 26 December (Boxing Day) when Boxing Day is a Saturday or the Tuesday after Boxing Day when Boxing Day is a Sunday.”
In this decision, I will refer to the public holidays in s.6 of the PH Act that do not necessarily occur each year - such as the Monday after New Year’s Day in s.6(b) of the PH Act - as ‘variable’ public holidays. While they are expressly provided for in the PH Act, their incidence might vary from year to year. For convenience, I will refer to the other public holidays listed in s.6 of the PH Act as ‘fixed’ or ‘regular’ public holidays.
The list of public holidays set out above did not always reflect the position in Victoria.
From at least the commencement of the PH Act in 1993 until around 2003, there were initially 10 fixed public holidays (and, without having traversed the earlier legislative history, a similar state of affairs existed well before 1993). During this period, there were no ‘variable’ public holidays.
From around 2003, Easter Saturday was added as a fixed public holiday to the list in s.6 of the PH Act, bring the number of fixed public holidays to 11. There were no ‘variable’ public holidays that could extend the number beyond 11.
By 2008, two ‘variable’ public holidays were provided for in s.6 following amendments to the PH Act by the Public Holidays Amendment Act 2008 (Vic), but they would only apply in particular circumstances. Specifically, while New Year’s Day remained a public holiday, the Monday after New Year’s Day would also be a public holiday if New Year’s Day itself fell on a Saturday or Sunday. Similarly, the formulation for Christmas Day had the effect that, if Christmas Day fell on a Friday to Sunday, there would be an extra day appointed, such that there would be 3 public holidays appointed for that Christmas period.
Between 2008 and 2015, the PH Act therefore appointed 11 fixed or regular public holidays but, depending upon the year in question (e.g., if Christmas Day fell on a Friday), s.6 of the PH Act could provide for up to 13 public holidays in a given year.
I note that at all relevant times since 1993, the legislative regime contemplated the relevant Minister being able to appoint, by a gazetted notice under s.7 of the PH Act, a public holiday in “addition” to those listed within s.6 of the PH Act. Similarly, the Minister could, under s.8 of the PH Act, “substitute” a public holiday listed in s.6.
On 19 August 2015, the relevant Minister responsible for administering the PH Act appointed[3] two holidays under s.7(1)(a) of the PH Act. The two holidays were Easter Sunday and the Friday before the Australian Football League Grand Final (the latter also being known as the Grand Final Eve holiday). These two additional days have remained as public holidays since.
Since 2015, there were therefore at least 13 fixed public holidays in Victoria – including the gazetted holidays for Easter Sunday and Grande Final Eve - in a given year and potentially as many as 15 public holidays if New Year’s Day fell on a Sunday and if Boxing Day fell on a Saturday or Sunday.
In 2019, the PH Act was amended to reflect the list set out above, and Easter Sunday and the Grand Final Eve holiday now included in the express list of holidays appointed by s.6. In addition to consolidating those two public holidays, a further change was made for Christmas Day, which was to the effect that Christmas Day itself would always be a public holiday and (the prior formulation was ‘or’), where Christmas Day fell on a Saturday or Sunday, the following Monday or Tuesday would be an additional day.
In short, the effect of the 2019 amendments meant that there are now 13 fixed public holidays in Victoria in a given year and, with the variable public holidays provided by s.6, potentially as many as 16 public holidays (if New Year’s Day falls on a Sunday and Christmas Day falls on a Saturday, etc).
Factual background
Mr Beasley is a full-time employee, who commenced working for the Respondent in 1982, initially as an apprentice electrician. For the last 15 years, he has been the shop steward for the Respondent’s in-house electricians.
Mr Beasley’s evidence, which I accept, was that when he first started, the base salary and any allowances were paid in accordance with the relevant award. In around 1993, the Respondent moved to an ‘annualised’ system of payments for allowances. Initially, the annualised allowance was 44%, reflecting a change to rostering made at the same time (in which the 8-hour rotating shift roster was changed to a 12-hour 7-day continuous shift roster). The allowance was to cover shift penalties, weekend work, public holidays and for working a 42 hour week instead of 38 hours. As noted above, the PH Act provided for 10 public holidays at that time.
In 2006, Mr Beasley says the allowance changed for some of the workers from 44% to 26.5%, due to the roster being changed from 12 hours to 10 hours. Fewer hours were required to be worked and, it appears, night shift work was no longer required.
In 2014, Mr Beasley says further changes were made. His evidence included a document “tabled” during negotiations for an enterprise agreement being negotiated that year. Mr Beasley explained that the document described the various components for a 44% allowance for 12-hour shift workers, which relevantly included:
“• 4 hours of overtime at double time (416 hours)
· 12 hours per fortnight for Saturdays at half time (156 hours)
· 12 hours per fortnight for Sundays at single time (312 hours)
· 12 hours x 5 days of public holidays rostered on at time and a half (90 hours)
· 12 hours x 5 days of public holidays rostered off at single time (40 hours)
· 12 hours for one Easter Saturday worked at single time (6 hours)”
Mr Beasley described the introduction of the Grand Final Eve holiday in 2015. He says an agreement was reached at the time, which was that workers would receive time in lieu for working on that day. In 2018, a different agreement was negotiated, which was to the effect that the Respondent agreed to paid additional compensation for working on the new public holidays on Easter Sunday and Grand Final Eve.
In 2018, a new enterprise agreement was negotiated. At this time, the 2018 enterprise agreement reduced the ‘allowance’ component by an amount (approximately 5%), which was added to the employees’ base rate. The net effect of that change was beneficial for the employees, as it resulted in a more favourable outcome for superannuation (because, I understand, superannuation was not applied to the ‘allowance’ component). In addition, Mr Beasley says that the public holiday changes negotiated that year were embodied in the 2018 agreement. Reflecting Mr Beasley’s summary, and taking the 12-hour shift allowance in the 2018 agreement as an example, the ‘notes’ in cl.9(c) of the 2018 enterprise agreement describe a “Shift Allowance of 37.71% of the Base Salary”, plus a further component of 0.41% and 0.14% for respectively working on Grand Final Eve and Easter Sunday. A similar breakdown was provided for 10-hour shift workers.
As part of the agreement approval process in 2018, the Respondent sent all trade employees a PowerPoint presentation that sought to provide an explanation of the terms of the then-proposed agreement and their effect. There were two particular slides, that I was referred to by the parties. Given the emphasis placed upon them at the hearing, I set them out in full:
“Clause 17- Public Holidays
· Clause 17(a) - Prescribed Public Holidays
· This clause, in summary, prescribes the public holidays recognised by the Agreement (which include Easter Sunday & the Friday before Grand Final Day).
· Clause 17(b) - Substitution of Public Holidays
· This clause, in summary, outlines the circumstances in which a public holiday may be substituted for a different day (e.g. such as observing Christmas day on 27/12 where it falls on a Saturday/Sunday).
· Clause 17(c) - Modifications to Public Holidays
· This clause, in summary, provides that where the State of Victoria:
- Declares a new public holiday such public holiday will be added to the
list of public holidays at clause 17(a); and
- Removes one of the public holidays referred to at clause 17(a) from the
list of prescribed public holidays, Alcoa will no longer be required to
recognise such day as a public holiday.
Clause 17- Public Holidays – cont
· Clause 17(d) - Shift Workers
· This clause provides that compensation for shift workers rostered to work on public holidays (i.e. as listed at clause 17(a)) is provided in relevant shift allowance.
• Clause 17(e) - Part Time and Casual Employees
· This clause provides that part time & casual employees will only receive payment for hours that fall on a public holiday that they would otherwise have been rostered to work.
· Clause 17(f) - Leave without Pay
· This clause provides that an employee on approved leave or absence without pay will not be entitled to payment for public holidays that fall within that period of absence.”
The allowances and the ‘notes’ described in cl. 9 of the 2018 agreement have been largely replicated in the Agreement. These are set out above.
Clause 17 (public holidays) of the enterprise agreements has been largely unchanged since the enterprise agreement in 2014, although the number of “prescribed” public holidays listed in cl.17(a) has increased over time. In 2018, the second paragraph in cl.17(c) (which dealt with the effect of public holidays being removed) was introduced. It is unchanged in the current Agreement.
Submissions
The parties have provided detailed written submissions, as well as oral submissions. It is not practical to set them out in full although I will attempt to summarise the differences.
For the ETU:
· The ETU contends that the reference in cl.17(d) of the Agreement to the public holidays “specified above” is solely to those public holidays listed in cl.17(a) and not to any ‘variable’ public holidays of the kind I have described above.
· The ETU contends that the PowerPoint presentation circulated during bargaining in 2018 (when the current form of cl.17 was arrived at) evinces an intention of the parties for cl.17(d) to operate in accordance with the ETU’s preferred construction of the words “specified above” in that clause. This is because the explanatory document describes, for cl.17(d), the public holidays “as listed in clause 17(a)”.
· The ETU says that Mr Beasley’s evidence, and the antecedent agreements, demonstrate that the components of the shift allowances have been “meticulously” calculated, with the recent introduction of Easter Sunday and Grand Final Eve being examples. The ETU say it would be anomalous for those components to have been so precisely calculated, yet for other public (new) holidays to be compensated by the fixed “bucket” of allowances that already existed.
· The ETU contends that the current structure of cl.17 faithfully follows cl.36 of the Portland Smelter Services Pty Limited Award 2003, which the Agreement incorporates in respect of any matter for which the Agreement is silent.
· The ETU says that the decision in 2015 to separately compensate for Easter Sunday and Grand Final Eve indicates that the parties contemplated that the enterprise agreement at the time - and as restated in 2018 and then 2021 in materially the same form save for the additions to cl. 17(a) and 17(c) – that additional public holidays were not to be compensated by the existing arrangements.
For the Respondent:
· The Respondent contends that the reference to the “public holidays specified above” in cl.17(d) encompasses all the public holidays specified by any of clauses 17(a) – (c).
· On the Respondent’s case, the effect of cl.17(d) is that no further payment is required to be made to shift workers rostered onto a public holiday appointed under the PH Act but otherwise not specifically listed in cl.17(a). This includes the public holidays falling after the Christmas Day weekend in 2021.
· The Respondent says that textual support for its preferred construction is found in Clause 9(a)(vi)(1), which provides that the “total salaries” payable to employees includes, where applicable, a shift allowance in regard to all shift workers for “all disabilities and disturbances associated with shift work and the working of regularly rostered shifts on weekends and public holidays” (my emphasis). As to this specific clause, the ETU contends that the underlined ‘and’ in the foregoing means that the words that follow it should be read disjunctively and therefore provide no more than a statement that shift workers regularly work public holidays and weekends.
The Agreement provides no mechanism for compensation for any public holidays not listed in cll. 17(a) – (c). In this respect, the Respondent relies on cl.6(c) of the Agreement, which states that the Agreement is “intended to cover the field on all matters” and it provides a “complete and final resolution of all claims, whether specifically covered by this Agreement or not… ”.
In answer, the ETU contends that the National Employment Standards (NES), at s.114 of the Fair Work Act 2009 (the Act), would apply to ensure that any work on public holidays not specifically listed in cl.17(a) would necessarily need to be compensated by reason of the requirement that a request to work those public holidays could not be unreasonably refused but that for a request to be reasonable, it would need to be accompanied by appropriate compensation (whether as time in lieu or by monetary amounts).
Consideration
There was no dispute as to the applicable principles concerning the interpretation of enterprise agreements but, rather, the nature of that dispute concerned the application of established principles.[4] In particular, it was not in dispute that recourse to the history and context of clauses in an enterprise agreement can be considered, where appropriate. What was in dispute was whether it was necessary to do so and, if that material was considered, how that informed the analysis.
A convenient starting point in my analysis is cl.9 of the Agreement. Clause 9(a)(i) states that the salaries and other payments in cl.9 provide for “all” circumstances, conditions of employment and hours worked under annualised salary arrangements. It specifically states that no allowances, loadings, penalties or premiums “of any form” will be paid “except where otherwise provided for in this Agreement.”
Clause 9(b) provides that employees will be paid total annual salaries, according to their shift pattern, associated allowances and classification. Returning to cl.9(a), subclause 9(a)(iv) states, with reference to the “total salaries prescribed in sub clause (b)”, that the total salaries “also include a shift allowance in compensation, where applicable” for various matters. One of those matters is in cl.9(a)(iv)(1), which states that the shift allowance in the total salary applies, in regard to all shift workers, for “all disabilities and disturbances associated with shift work and the working of regularly rostered shifts on weekends and public holidays” (my emphasis).
I do not accept the ETU’s submission that the part of cl.9(a)(iv)(1) italicised above “provides no more” than that, on a regular basis, shift workers will work on public holidays and weekends. There are numerous clauses in the Agreement which indicate, with specific context, that shift workers will regularly work on weekends or public holidays: see, for example, cl.10(b)(v) (within ‘Hours of work’), cl.12(a)(ii) (within ‘Annual leave’) and 12(c) (also within ‘Annual leave’) among others.
The italicised part of cl.9(a)(iv)(1) above appears in a detailed clause addressing rates of pay and allowances. It strains the clause to bifurcate the part describing the “disabilities and disturbances” associated with “shift work” as having work to do (by making clear that Shift Allowances covered those matters) but that the working of weekends and public holidays referred to was essentially declaratory.
I consider that all the words in cl.9(a)(iv)(1) are matters included in a shift allowance as compensation for shift work and working rostered shifts, as the chapeau to cl.9(a)(iv) describes for applicable shift allowances. That compensation includes all public holidays that are worked.
The ETU is on stronger ground regarding its contention that the parties had precisely or meticulously provided for public holidays – including new public holidays – as part of their bargain for the Shift Allowances contained in cl.9(b) of the Agreement. Similarly, it is on stronger ground with its observation that the parties arguably made arrangements outside of the remit of the (then) enterprise agreement when time in lieu was agreed for the new Grand Final Eve holiday introduced by gazette in 2015.
However, exactly what was being precisely calculated requires careful consideration. Mr Beasley’s evidence, the antecedent enterprise agreements, and the legislative history indicate that, up until 2008, there were 11 fixed public holidays. The most recent addition to that list was Easter Saturday, which occurred in about 2003.
However, the legislative change to the PH Act in 2008 meant there might have been an additional two public holidays following the legislative amendments made that year, depending on whether New Year’s Day or Boxing Day fell on a weekend. At no point that follows did the evidence disclose a particular practice for work that fell due on those ‘variable’ public holidays. It is not the case that the variable public holidays established by the PH Act did not arise. A review of a calendar since the 2008 amendments to the PH Act indicates that 26 December (Boxing Day) fell on a Saturday or Sunday (thus establishing an additional ‘variable’ public holiday) in 2009, 2010, 2015 and 2020. Similarly, since 2008, 1 January (New Year’s Day) fell on a Saturday or Sunday (thus establishing an additional ‘variable’ public holiday) in 2011, 2012, and 2017.
Mr Beasley’s evidence contains a note from 2014. Even if that note was held to be indicative of a common intention (and I am not convinced it was, although it is a matter I need not decide), it provides calculations for 11 public holidays, including Easter Saturday. Those 11 public holidays represented, presumably, the ‘fixed’ public holidays in Victoria and did not appear to account for any ‘variable’ public holidays, despite variable public holidays having been in place since 2008.
So far as the 2014 note appears to account for work on the 11 ‘fixed’ public holidays, it did so in a broad-brush way for the purposes of calculating compensation. For 12-hour shift workers, the note assumed that exactly half the public holidays would be worked and half would not. That assumption or calculation might be broadly reasonable, but it is evidently just that – an assumption – and it did not document a precise calculation that would be adjusted depending on what shifts and what public holidays would be actually worked.
I consider the most that the evidence shows is that the parties were attentive to ensuring that fixed public holidays, or holidays likely to be fixed such as Easter Sunday and Grand Final Eve - would be specifically addressed in the enterprise agreements and, most recently, have been done so in the Agreement. There was possibly an unstated recognition of (or perhaps simply a failure to consider) the ups and downs that would occur in a given year for total public holidays – i.e. numbering between 11 – 13 at beginning in 2008 – and that there might be further variations across shifts. The parties either assumed – or did not consider at all – that the cards would effectively lie where they fell for these variable public holidays, as and when they occurred.
There is also no clause in the Agreement that purports to address or provide for how a shift worker might be compensated for any additional public holidays worked. The ETU’s position was that compensation would necessarily be determined through the operation of the NES. Sections 114(1)-(2) of the Act provides that an employee is entitled to be absent on a public holiday, however an employer may request an employee to work if the request is reasonable. Section 114(3) provides that an employee might refuse a request if it is not reasonable and s.114(4) provides for various matters to be taken into account when determining whether a request is reasonable or not. Section 114(4)(d) specifically considers any compensation for that work as a relevant factor that must be taken into account when assessing reasonableness.
I am not satisfied that the evidence or the enterprise agreement history evinces a common intention to the effect that the makers of the antecedent enterprise agreements and, most recently, the Agreement intended to exclude work or compensation for that work from the Agreement for variable public holidays.
A textual consideration of the Agreement suggests the opposite, namely that the parties did intend to include work on variable public holidays and compensation for that work to be dealt with by the Agreement. Firstly, the Agreement is a comprehensive agreement, dealing with a significant number of matters. The Agreement itself is express to “cover the field on all matters”. Those matters include salaries in cl.9 - being ‘total salaries’ – and public holidays in cl.17.
I do not consider that the terms of cl.17 evince a different intention to what I have described above.
Clause 17(a) provides that an employee “will be granted the following holidays on full pay”, and then lists 13 specific days. The reference to employees being granted holidays “on full pay” is an initial signal to work arrangements where public holidays would not be worked (but would be paid). Under the Agreement, Day Workers described in cl.10(a) would be the direct beneficiary of the grant of the holiday on full pay.
For part-time and casual employees, cl.17(e) means that cl.17(a) does not apply to them except for days they would have otherwise been rostered to work.
The position for shift workers is different and has also been specifically addressed. Firstly, cl.17(d) indicates that shift workers may well be rostered to work on a public holiday and, secondly, that compensation for such work is provided in clause 9.
The reference in cl.17(d) to the public holidays “specified above” means just that – any public holiday specified “above” in cl.17(a) – (c). It is not confined to the list in cl.17(a).
I do not consider that the explanatory notes circulated prior to the 2018 enterprise agreement indicate a different conclusion. While those explanatory notes refer to public holidays, in the context of describing cl.17(d), as “i.e. as listed in clause 17(a)”, that must be read in context with the earlier explanatory notes. In the notes for cl.17(c), it makes clear that the list of public holidays in cl.17(a) might be “added to” or removed from. I consider the explanatory notes provided for cl.17(d) do no more than describe in a shorthand way that the list of public holidays will be those in cl.17(a), as potentially modified by cl.17(b) or (c).
In my view, this reflects no more than the ordinary meaning of the text of the Agreement. I consider that the actual text of clauses 17(a) – (d) of the Agreement are sufficiently clear in their own terms.
Returning to the question posited for arbitration, that directs attention to public holidays occurring on “a day other than those set out in subclauses 17(a) and 17(b)”.
The ‘variable’ holidays provided for by the PH Act since 2008 are not set out in cl.17(a). In one sense, those ‘variable’ holidays are provided for by cl.17(b)(i) of the Agreement but only so far as cl.17(b) substitutes one of the ‘fixed’ public holidays in s.17(a). Taking New Year’s Day for example, that day is provided for in cl.17(a) but, where it falls on a Saturday or Sunday, cl.17(b)(1)(i) states that a holiday “in lieu” shall be taken the following Monday. However, while the Agreement removes (by substitution) the New Year’s Day holiday from cl.17(a) in those circumstances, the PH Act provides for two public holidays at the New Year period: one is New Year’s Day itself and the other is a ‘variable’ additional holiday where New Year’s Day falls on a Saturday or Sunday. Strictly speaking, for the purpose of applying the public holidays established by the PH Act to the Agreement, the “additional” public holiday arising is New Year’s Day itself now (because the Agreement has already provided for the ‘variable’ public holiday under the PH Act by having substituted the New Year’s Day holiday itself). I do not understand that anything turned on this nuance because, in a practical sense, the parties were well aware of the total public holidays provided by cl.17(a) and (b) and were equally aware that that the PH Act created additional public holidays. So while the Agreement ‘removes’ the New Year’s Day holiday (when falling on a Saturday or Sunday), the PH Act re-establishes it as an additional day.
Clause 17(c) has the effect of allowing for any extra public holidays established by operation of the PH Act (whether as a ‘variable’ public holiday or by reinserting an existing day).
I have already concluded that cl.17(d) applies to public holidays in all of clauses 17(a) – (c). I have also concluded that the compensation in cl.9 applies to all public holidays that might be worked, including extra public holidays arising by operation of the PH Act that are not otherwise provided for by cl.17(a) (as potentially affected by cl.17(b)).
Conclusion
Given those conclusions, my answer to the question posited for arbitration is, save for one qualification, “no”.
That is, in the event that, in the State of Victoria, a public holiday is declared or prescribed on a day other than those set out in subclauses 17(a) and 17(b) of the Portland Aluminium (Trades) Agreement 2021, employees engaged to perform shift work on such additional public holidays are not entitled to time off in lieu (or financial equivalent) in compensation for the performance of such work on that additional day.
The qualification I make to my answer just given is the requirement that there be a valid “request” for the purpose of s.114 of the Act.[5] However, so far as the question of compensation arises, I consider that such work is already compensated by the Agreement.
The dispute is determined accordingly.
DEPUTY PRESIDENT
Appearances:
E. McGrath from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
M. Vallence of Heelan & Co Industrial Relations and Management for the Respondent
Hearing details:
2023.
Melbourne (by video via Microsoft Teams):
February 9.
[1] One of those days is ‘Portland Day’, which I infer is the equivalent to ‘Melbourne Cup Day’ under the PH Act. There was no issue in dispute about this day.
[2] By ‘fixed’, I mean that it will occur every year, although the day or date it falls on might vary.
[3] Victoria Government Gazette, No. S 229, 19 August 2015, by Notice from the Hon. Philip Dalidakis MP, Minister for Small Business, Innovation and Trade.
[4] See, e.g., WorkPac Pty Ltd v Skene (2018) 264 FCR 536, 580 at [197] (Tracey, Bromberg and Rangiah JJ) and James Cook University v Ridd (2020) 278 FCR 566, 580 at [65] (Griffiths and S C Derrington JJ); AMWU v Berri Pty Limited (2017) 268 IR 285.
[5] I note that following the hearing of this matter, the Full Court issued a decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, which considered the requirements of a “request” in the context of rostered work. While I do not consider that this recent decision affects the dispute regarding compensation I was asked to determine, I note if for completeness.
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