[2019] FWC 100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Maritime, Mining and Energy Union - Manufacturing Division
v
Wilson Mining Services Pty Ltd
(C2018/1663)

DEPUTY PRESIDENT ASBURY

BRISBANE, 22 JULY 2019

Dispute over proper construction of agreement – Coal industry – Entitlement of employees to be paid for public holidays not worked – public holidays coinciding with Rostered days off – Interaction between enterprise agreement and Black Coal Mining Industry Award 2010 – Employees entitled to be paid ordinary rates for public holidays not worked because they are rostered off.

BACKGROUND

[1] This Decision concerns applications made on 27 March 2018 under s. 739 of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for the Fair Work Commission (the Commission) to deal with a dispute arising under the Wilson Mining Services Pty Ltd – CFMEU QLD Enterprise Agreement 2016 1(the 2016 Agreement) in relation to payment for public holidays falling on rostered days off for employees working 7 day continuous rosters.

[2] The Agreement was approved by the Commission on 5 April 2016 by Decision issued on that date and operated from 12 April 2016. 2 The 2016 Agreement reached its nominal expiry date on 23 March 2018. The parties to the 2016 Agreement are expressed to be Wilson Mining Services Pty Ltd (Wilson Mining), its employees within the classification structure contained in Schedule A to the Black Coal Mining Industry Award 2010 (the BCMI Award) and the “Queensland Construction Forestry Mining & Energy Union (CFMEU) – (Mining & Energy Division) (the CFMMEU). The background to the disputes can be briefly stated.

[3] The employees who are the subject of the dispute are working at the North Goonyella Coal Mine where Wilson Mining is contracted to supply labour. North Goonyella is an underground coal mine. The employees are performing general mining duties and emergency work when required. When they are not performing emergency work the employees work the same roster as that which is worked by the permanent workforce at the mine. The roster follows a 5/4 even time shift pattern over a 28 day cycle with 12 hour shifts being worked over 7 days of the week. The roster pattern involves employees working a pattern of 5 day or night shifts followed by four days off and then 4 day or night shifts followed by 5 days off on a rotating basis.

[4] At least from the commencement of the 2016 Agreement, employees were paid 8 ordinary hours for public holidays which fell on days where they were not rostered to work. On or around December 2017 Wilson Mining decided to cease this payment to employees who were not rostered to work on the holiday and on 12 January 2018, in response to queries from employees about this matter, issued a memorandum stating that in accordance with the Black Coal Industry Award 2010, the 2016 Agreement and s. 116 of the Act, employees who do not have ordinary hours of work on a public holiday are not entitled to be paid for the such holidays. The memorandum further stated that any previous payments contrary to this approach had been made in error and that Wilson Mining would not seek to recover those payments. The memorandum concluded with a statement that going forward employees would be paid for work on recognised public holidays as per the 2016 Agreement if the holiday fell on a day they would normally be rostered to work on.

[5] Thereafter followed an exchange of correspondence between Wilson Mining and the CFMMEU in relation to the Company’s position, culminating in the CFMMEU lodging a dispute with the Commission. Conciliation conferences were held in relation to the dispute but were unsuccessful in resolving the dispute. Directions were issued for the filing of written submissions. A hearing was held to give the parties an opportunity make oral submissions in support of their respective arguments, followed by further written submissions. By agreement between the parties, the question for arbitration is:

“Employees working on ‘red crew’ are employed as full time permanent employees under [the Agreement]. As per the schedule provided, they were not scheduled to perform work on Christmas Day and Boxing Day 2017.

On a proper construction of the Agreement, were these employees entitled to payment under the Agreement?

And, if so, what payment were they entitled to?”

[6] The schedule to the question for arbitration is the roster worked by employees on red crew. The dispute settlement procedure in clause 14 of the Agreement empowers the Commission to arbitrate a dispute including in relation to the interpretation or application of the 2016 Agreement, matters in relation to the National Employment Standards (NES) or matters arising in the course of employment. It is not in dispute that the CFMMEU has followed the necessary preliminary steps in the procedure.

[7] The CFMMEU relied upon the following material:

• Submissions filed on 11 June 2018;

• Statement of Mr Steve Pierce, District Vice-President, signed 28 August 2018; 3

• Reply submissions filed on 12 July 2018;

• Statement of Mr Chris Molloy, Mine Operator and Lodge Secretary, signed 28 August 2018; 4

• Additional submissions filed 12 September 2018; and

• Final submissions filed 23 January 2019.

[8] Wilson Mining relied upon the following material:

• Outline of submissions filed 29 June 2018;

• Additional submissions filed 5 September 2018; and

• Final submissions filed 30 January 2019.

[9] Wilson Mining also filed a statement of Mr Jason Knights, Commercial Manager, but the statement was withdrawn. 5 I have not had regard to Mr Knights’ statement. The CFMMEU was represented by Mr C Newman. Wilson Mining was represented by Ms M Campbell, a Human Resources Consultant with Hunter People Services, who appeared as a paid agent. I note that the 2016 Agreement provides that a party can appoint another person, organisation or association to represent them in relation to a dispute. To the extent that it was necessary, I granted Wilson Mining permission to be represented by a paid agent on the basis in s. 596(a) that it would allow the matter to be dealt with more efficiently, taking into account its complexity.

RELEVANT INDUSTRIAL INSTRUMENTS

[10] Clause 3.0 of the 2016 Agreement provides that the Agreement shall be “…read in conjunction with the Black Coal Mining Award 2010” and that “[A]ny matter not specifically spelt out in this Agreement shall be covered by the relevant clause of that Award.”

[11] By virtue of clause 4.1, all employees of Wilson Mining are employed on a weekly basis (Sunday to Saturday), and may be required to work at any location of Wilson’s operations. Clause 6.1 of the 2016 Agreement provides that the ordinary hours of work shall be 35 hours per week, with the minimum hours for permanent employees being the equivalent of 40 hours paid at single time per week. Clause 8.3 provides that wages are to be paid on a weekly basis.

[12] Clause 14 of the Agreement is the disputes procedure and relevantly provides:

“14.0 DISPUTES PROCEDURE

14.1 In the event of any dispute arising as to the interpretation or application of this agreement, or any matter arising in the course of employment, including matters in relation to the National Employment Standards, the matter shall in the first instance be discussed between the employee and the immediate supervisor involved. If the matter remains unresolved:

14.2 It shall be referred, in writing, for discussion between the employee and the Company’s Operational Supervisor representative. If the matter remains unresolved:

14.3 It shall be referred for discussion between the employee and the nominated senior Company Officials. If the matter remains unresolved:

14.4 Then a forty-either (48) hour ‘cooling off’ period will apply before the dispute is referred to [the] Fair Work Commission for conciliation and/or arbitration. Upon referral of the matter, [the] Fair Work Commission shall conciliation and if necessary, arbitrate the matters in dispute. In exercising its role under this clause, [the] Fair Work Commission may exercise any of its powers under the Fair Work Act 2009 and in accordance with this dispute resolution procedure, any additional powers it finds are necessary to effectively resolve the matter in dispute.

14.5 By agreement between the parties any or all of the aforementioned steps may be by-passed in the interests of speedy resolution of the dispute.

14.6 A party to a dispute may appoint another person, organisation or association to accompany or represent them in relation to a dispute…”

[13] As previously stated, there is no disagreement that the Commission is empowered to arbitrate the present dispute and that the steps in the procedure have been complied with.

[14] Clause 19.0 of the Agreement deals with weekends and public holidays as follows:

“19.1 Recognised Holidays:

All recognised holidays for the purposes of this agreement are:-

• New Years Day

• Australia Day

• Good Friday

• Easter Saturday

• Easter Monday

• Mackay Show Day

• Anzac Day

• Queen’s Birthday

• Labour Day

• Christmas Day

• Boxing Day

or such other day/s as may be gazetted.

19.2 Holiday Payments:

A permanent employee not required to work a recognised holiday, and has qualified for payment, shall be paid for that day at 8 hours ordinary time at the employee’s classification rate plus the average bonus.

Employees required to work on a recognised public holiday shall be paid at triple time.”

[15] Clause 19 of the Agreement has appeared in identical terms in each of the predecessor agreements to the 2016 Agreement – in 2005, 6 20087 and 2011.8 Each of the predecessor agreements has also provided that it “shall be read in conjunction” with the relevant award. For the 2016 and 2011 enterprise agreements that award was the BCMI Award. For the 2008 and 2005 agreements the relevant award is referred to as the “Production & Engineering Award of 1997” which I take to be a reference to the Coal Mining Industry (Production and Engineering) Consolidated Award 19979(the P&E Award). It appears that Wilson Mining Services Pty Ltd was a party to the Award by operation of the Coal Mining Industry (Production & Engineering) (Roping-in No. 1) Award 2000.10

[16] Clause 6.0 of the 2016 Agreement provides that the ordinary hours of work shall be 35 per week with the minimum hours for permanent employees being the equivalent of 40 per week. By virtue of 7.0 employees are paid at single time for the first 7 hours of a shift and double time for additional hours worked until the completion of the shift, from Monday to Friday. Clause 19.3 provides that the rate for all Saturday work is double time and clause 19.4 provides that the rate for all Sunday work is also double time.

[17] The BCMI Award which is – by virtue of clause 3.0 – read in conjunction with the 2016 Agreement, provides as follows in relation to public holidays:

“27. Public holidays

27.1 Public holiday entitlements are provided for in Division 10 of the NES.

27.2 Transfer of recognised public holidays

The employer and the majority of employees affected may agree to observe a holiday on a day other than the day prescribed. If this occurs, the day agreed upon is the award holiday and the actual holiday becomes an ordinary working day.

27.3 Employee not required to work on a public holiday

An employee who is not required to work on a holiday which would otherwise have been a working day for that employee will be paid for that day at the employee’s classification rate unless the employee, without good and sufficient reason, fails to work on the employee’s:

(a) last working day immediately before the holiday; or

(b) first working day after the holiday;

in which case the employee is not entitled to payment for such holiday.

27.4 Employee required to work on a recognised public holiday

(a) An employee who is required to work on a holiday is to be paid at the rate of double time for work performed during ordinary hours, in addition to the payment prescribed.

(b) Work performed in excess of ordinary hours on a holiday is to be paid at the rate of treble time.

27.5 Notice of public holidays to be worked (other than employees working shifts of up to 8.5 ordinary hours)

(a) On a date agreed, the employer will nominate which public holidays will be worked in the following 12 months by employees (other than employees working shifts of up to 8.5 ordinary hours on weekdays), provided that work will not to be carried out on two of such holidays.

(b) If the employer does not require employees to work on a public holiday (as nominated in clause 27.5(a)) the employer must give the employees as much notice as possible of this decision.

(c) If the notice required by clause 27.5(b) is less than four weeks inclusive of the holiday, an employee who was rostered to work on the holiday is to be paid for ordinary hours as if the holiday had been worked.

(d) If the employer decides not to require work to be performed on a public holiday because of a strike or ban, employees, other than those involved in the strike or ban, are to be paid at their classification rate for ordinary hours.

27.6 Employees working Monday to Friday shifts of up to 8.5 ordinary hours

(a) An employee who only works shifts of up to 8.5 ordinary hours on weekdays cannot, as an integral part of their roster cycle, be rostered for ordinary hours on public holidays. Such employees may, however, in exceptional circumstances, be required to work on public holidays to meet operational needs.”

[18] The phrase “working day” is not defined by the BCMI Award but the Award does define “non-working day” as follows:

“non-working day means any day on which an employee by virtue of the employee’s roster is never rostered to attend for rostered hours of work.”

[19] The BCMI Award also deals with the interaction between rostered days off and public holidays in clause 23.6(f), as follows:

“(f) RDOs falling on a recognised public holiday

An employee who is entitled to an RDO which falls on a public holiday is, at the discretion of the employer, to be either:

(i) paid at the employee’s classification rate; or

(ii) credited with one day for each such public holiday (payable at ordinary rates).”

[20] The following terms are defined in clause 3.1 of the BCMI Award:

“roster means any arrangement of rostered hours worked by an employee

roster cycle means the period over which a roster repeats and an employee’s hours average 35

rostered day off or RDO each mean any day on which an employee, by virtue of the employee’s roster, is not rostered to attend for rostered hours of work and does not include non-working days

rostered hours means ordinary hours of work and rostered overtime

rostered overtime means reasonable additional hours which are required to be worked by an employee as an integral part of the employee’s roster”

[21] The provisions of the P&E Award in relation to public holidays were in essentially the same terms as the BCMI Award except that there was no reference in the P&E Award to the NES (which had not been enacted at the relevant time). The predecessor to the P&E Award was entitled the Coal Mining Industry (Production & Engineering) Interim Consent Award September 1990 (the Interim P&E Award). Relevantly at clause 3 the Interim P&E Award defined the terms “Non-working day”, “Rostered day off”, “Rostered overtime” and “Rostered hours” in essentially the same terms as later appeared in the P&E Award and then the BCMI Award. Clause 14 of the Interim P&E Award provided as follows:

14- SATURDAY, SUNDAY AND HOLIDAY WORK

(a) Minimum Payment

Unless continuous with work commenced the previous day an employee (other than an employee on ordinary hours of work) called on to work on a Saturday, Sunday or holiday shall be paid for at least three hours at the appropriate rate.

(b) Saturday Work - 7 Day, 6 Day or 5 Day Weekend Roster Employees

Ordinary hours of work on a Saturday shall be paid at the rate of time and one half for the first four hours and double time thereafter.

The rate for all Sunday work shall be double time.

(d) Recognised Holidays

The recognised holidays shall be - New Years' Day, Australia Day, Good Friday, Easter Monday, Anzac Day, May Day or Labor Day, Queen's Birthday, Exhibition or Show Day or Easter Tuesday, Christmas Day and Boxing Day, or any day observed by the public in the States of New South Wales or Queensland or Tasmania in lieu thereof, together with all other days gazetted from time to time as public holidays which are observed generally by the public in that State. Exhibition or Show Day may be taken in Queensland on any day specified from time to time by the Minister. Provided that an employee shall not be entitled to receive more than one day per year as Exhibition or Show Day.

(e) Transfer of Recognised Holidays

Agreement may be reached between the management and the majority of employees affected at the mine to observe any holiday on a day other than the day prescribed in sub-clause (d). In such case the day agreed shall become the holiday for the purposes of this award and the actual holiday shall be an ordinary working day.

(f) Payment

(1) Qualifying. An employee not required to work on a recognised holiday who, without good and sufficient reason fails to work on the employees last working day immediately before a recognised holiday or the employees first working day after such holiday shall not be entitled to payment for such holiday.

(2) Employees not required to work. An employee not required to work on a recognised holiday and who qualified shall be paid for that day at the employees classification rate.

(3) Employees required to work. In addition to the payment prescribed by sub-clause (f)(2) the rate for work performed during ordinary hours on a recognised holiday shall be double time. The rate for work performed in excess of ordinary hours on a recognised holiday shall be treble time.

(g) Rostered Days Off Falling on a Holiday - 7 Day or 6 Day or 5 Day Weekend Rosters

An employee whose roster includes work on holidays in accordance with sub-clause (h)(1) hereof, and who is entitled to a rostered day off which falls on a holiday shall, at the discretion of the employer, be paid for that day at the rate prescribed by paragraph (f)(2) hereof or there shall be credited to the employee one day, being an ordinary working day paid at ordinary rates, for each such recognised holiday.

(h) Notice of Holidays to be worked - 7 Day, 6 Day or 5 Day Weekend Employees

(1) On a date agreed the employer shall nominate which public holidays shall be worked in the following twelve months, provided that work shall not be carried out on two of such holidays.

(2) If an employer decides not to work on a public holiday so nominated, the employer shall give the employees as much notice as possible of such decision.

(3) If the notice is less than four weeks inclusive of the holiday, an employee who was rostered to work on the holiday shall be paid hereof for ordinary hours as if the holiday bad been worked.

(4) If the reason the employer decides not to work on a holiday is due to any strike or ban, employees shall receive payment in accordance with sub-clause (f)(2) hereof.

(i) Rostered Days Off Not to Fall on a Holiday - Monday to Friday Employees

In the case of an employee whose roster does not include work on holidays, the weekday to be rostered off shall not coincide with a recognised holiday. Provided that in the event that a holiday is prescribed after an employee has been given notice of the rostered day off and the holiday falls on the weekday the employee is rostered off, the employer shall allow the employee to take the rostered day off on an alternative weekday.

LEGISLATIVE PROVISIONS

[22] The present dispute also involves consideration of the National Employment Standards (NES) and the interaction of public holiday standards with the 2016 Agreement. The NES provisions in relation to public holidays are found in s.114 of the Act and are in the following terms:

Division 10—Public holidays

114 Entitlement to be absent from employment on public holiday

Employee entitled to be absent on public holiday

(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.

Reasonable requests to work on public holidays

(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.

(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

(a) the request is not reasonable; or

(b) the refusal is reasonable.

(4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable,the following must be taken into account:

(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

(b) the employee’s personal circumstances, including family responsibilities;

(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

(e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);

(f) the amount of notice in advance of the public holiday given by the employer when making the request;

(g) in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;

(h) any other relevant matter.

115 Meaning of public holiday

The public holidays

(1) The following are public holidays:

(a) each of these days:

(i) 1 January (New Year’s Day);

(ii) 26 January (Australia Day);

(iii) Good Friday;

(iv) Easter Monday;

(v) 25 April (Anzac Day);

(vi) the Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);

(vii) 25 December (Christmas Day);

(viii) 26 December (Boxing Day);

(b) any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday.

Substituted public holidays under State or Territory laws

(2) If, under (or in accordance with a procedure under) a law of a State or Territory, a day or part-day is substituted for a day or part-day that would otherwise be a public holiday because of subsection (1), then the substituted day or part-day is the public holiday.

Substituted public holidays under modern awards and enterprise agreement

(3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2).

Substituted public holidays for award/agreement free employees

(4) An employer and an award/agreement free employee may agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2).

Note: This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public holidays (see paragraph 27(2)(j)).

116 Payment for absence on public holiday

If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work on the day or part-day.

Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.

[23] Modern awards or enterprise agreements may include terms that are ancillary or incidental to the operation of an entitlement of an employee under the NES 11 and may also include terms that supplement the NES.12 Such terms cannot be detrimental to an employee in any respect when compared to the NES.13

THE APPROACH TO AGREEMENT CONSTRUCTION

[24] The approach to the construction of industrial instruments such as enterprise agreements was most recently summarised in a Decision of a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd 14 as follows:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

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

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

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[25] In CFMEU v Endeavour Coal Pty Ltd T/A Appin Min 15 a Full Bench of the Commission held that the context of an agreement provision is significant. In this regard, the Full Bench set out the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA16 emphasising the following matters:

• Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means 17 and there is always some context to any statement;18

• Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”; 19

• To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side; 20

• The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context; 21 and

• Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction 22

[26] The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose are relevant to the construction of provisions in an enterprise agreement and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning. The following observations of Madgwick J in Kucks v CSR are also apposite in the present case:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 23

[27] The present case involves an industry specific award and rostering arrangements which provide context relevant to the disputed provisions of the 2016 Agreement. In this regard the following observations of Burchett J in Short v Hercus 24 about the importance of context are also relevant:

“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the course of their language, nor should a legal document, including an award, be so read.” 25

SUBMISSIONS AND EVIDENCE OF THE CFMMEU

[28] Mr Molloy is rostered to work on the red crew. On Monday 25 and Tuesday 26 December 2017 Mr Molloy was rostered off work. Mr Molloy states that he was also supposed to be rostered off from 23 – 26 December but took 21 – 24 December as annual leave as unless these days were marked as annual leave Mr Molloy may have been required to work in an emergency situation. Upon receiving a payslip after Christmas Mr Molloy noted that he had not been paid for the Christmas and Boxing Day holidays and that it had previously been the practice of Wilson Mining to pay 8 hours ordinary pay to employees for any public holiday they did not work.

[29] Mr Pierce said that it is his understanding that from the commencement of the 2016 Agreement employees were paid an additional 8 hours pay for every public holiday that their roster did not require them to work. Mr Pierce became aware of complaints made by employees after being paid their wages for the week of 25 – 31 December 2017 that they had not been paid for public holidays when they were not rostered to work. Mr Pierce tendered a memo issued by the Company’s Queensland Operations Manager to all Queensland employees on 9 January 2018 in the following terms:

“Some queries have recently been raised regarding payment of public holidays. In accordance with the Fair Work Act 2009, the Black Coal Award 2010 (sic) and the WMS Enterprise Agreement 2015 (sic), permanent and fixed term employees are not entitled to be paid for public holidays that fall on a day they would not normally work.

Please see the following:

Fair Work Act 2009 Section 116

“If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section.”

This legislation is supported by the Black Coal Award and WMS EA as is reinforced by the full bench of the Fair Work Commission. Any previous payments have been made in error by WMS. WMS will not seek to recover these payments. Going forward all permanent and fixed term employees will be paid for recognized (sic) public holidays as per the EA, if that public holiday falls on a day they would normally be rostered on…” 26

[30] Mr Pierce responded to Mr Williams’ memorandum by email, dated 12 January 2018, stating:

“I have been provided with a copy of the Memorandum dated 9th January 2018 with the title Public Holiday Payments. In part the first paragraph states ‘permanent and fixed term employees are not entitled to be paid for public holidays that fall on a day they would not normally work’. And further in the same memorandum it states ‘This legislation is supported by the Black Coal Award and WMS EA and is reinforced by the full bench of the Fair Work Commission’.

Unfortunately the memorandum does not provide reference to the particular provision/s of the Black Coal Award or particular decision/s of the Full Bench of the Fair Work Commission which the Company rely upon to support their position.

Could you please provide the provision/s and decision/s relied upon by the Company in order for the Union to determine the validity of the Company’s claim of not being required to pay the permanent and fixed term employees for public holidays that fall on a day they are not normally rostered to work.

In the absence of the provision of such information the Union will determine the appropriate process to protect the rights of our members.” 27

[31] Mr Williams responded to Mr Pierce by email, dated 17 January 2018, as follows:

“The Black Coal Award refers to employees only qualifying for public holiday payment if the holiday falls on a rostered day; please see below, clause 27.2

[Mr Williams extracted clause 27.3 of the Award and continued]

This clearly shows that under the award it is only employees who would normally be rostered are entitled to the public holiday pay.

The full bench decision referred to in the memo is reference the Australian Council of Trade Union (sic) claims made in the Fair Work Commission in April 2013 surrounding public holiday payments for shift workers. One of the claims made by the ACT focused on enforcing public holidays payments to employees who had no ordinary hours on a public holiday and were not required to work. On the 12^th of April 2013, the Commission rejected this claim. The Fair Work Commission has ruled that payment is only made to employees not rostered on to work on a public holiday. WMS is in no way trying to recoup the additional money previously paid, but going forward wish to rectify the incorrect practice. WMS permanent employees not rostered on a public holiday will not receive payment for that public holiday.” 28

[32] Mr Pierce replied to Mr Williams, also on 17 January 2018, stating:

“In respect to your response to the matter raised I draw your attention to the attached documentation, with the first document being the third page of the current Wilsons Agreement and in particular Clause 3 – Incidence and Application where the second paragraph (highlighted) states in part ‘This the Agreement shall be read in conjunction with the Black Coal Mining Industry Award 2010.’

The second document is page five from the Black Coal Mining Industry Award 2010 on which I have highlighted the definition of an RDO.

The third is page twenty-seven from the Black Coal Mining Industry Award 2010 on which I have highlighted paragraph (f) – RDO’s falling on a recognised public holiday.

These provisions clearly provide the mechanism by which the Employees are provided with an entitlement to payment for the public holidays referred to in the memorandum of the 9^th January 2018.

On the basis of the above attached information and explanation it is now our expectation that the Employees will receive payment for these days. Should the Company still be of the view that there is no entitlement to payment could you please advise me as a matter of urgency and we will progress this matter to the next level of the DSP.” 29

[33] Ms Campbell, HR Consultant, replied on Wilson’s behalf to Mr Pierce, on 14 February 2018, as follows:

“Thanks for your response. Sorry for the delay in getting back to you but WMS is keen to finalise this issue, we have considered the argument you have presented and sought legal advice on this matter. Our firm understanding of the legislation and advice received has been that the CFMEU has misinterpreted the definition of an RDO under the Black Coal Award. Your interpretation indicates an RDO is any day the employee is not at work.

[Ms Campbell extracted the definition of ‘rostered day off’ from the Modern Award and continued]

What that actual says is that the employee’s roster may include rostered hours for which they are then not required to attend by virtue of it being an RDO. So an RDO would be a day on which the employee would ordinarily work as part of their roster, and then they don’t work because they take an RDO.

[Ms Campbell extracted the definition of ‘non-working day’ from the Modern Award and continued]

A non-working day is a day on which they did not have rostered hours in the first place. As per the Award, the Fair Work Act and WMS Enterprise Agreement a non-working day does not attract public holiday payments.

[Ms Campbell extracted clause 27.3 of the Modern Award and clause 19.2 of the Agreement and continued]

By reading both clauses together, an employee qualified for payment for having ordinary hours scheduled on the public holiday. This clearly shows under the award and EA it is only permanent employees with ordinary hours on that day who are entitled to the public holiday payment.

Additionally, when reading the rest of [the Agreement] we find reference to public holidays under clause 21.3 Long Service Leave. This clause provides that an employee on LSL is entitled to an extra day off if a public holiday falls during that time, and “would have been a working day for that employee”.

[Ms Campbell extracted clause 21.3 of the Agreement and continued]

This further demonstrates that payment for public holidays is dependent on the holiday being a day that they would otherwise have been worked (sic). This is an EA agreed to by the QLD workforce with the CFMEU as its representatives. We can see the agreed intention of Clause 19.2 Holiday Payment is employees are only entitled to payment if the holiday falls on a day that would include ordinary hours.

[Wilson] are not intending to recover any overpayments made in this regard in the past.

I trust this clears up the matter. Please don’t hesitate to contact me if you wish to discuss the matter further.” 30

[34] The CFMMEU accepts that the position under the NES is that an employee is not entitled to payment for a public holiday that falls on a day that the employee does not have ordinary hours of work. 31 However, the CFMMEU submits that the Act does not prevent a modern award or enterprise agreement supplementing an entitlement under the NES with a term that is more beneficial.

[35] However, the CFMMEU submits that the wording of clause 19.2 is not clear 32 but submitted that a possible interpretation or explanation for the wording is that it refers to a permanent employee, not required to work a recognised holiday, being entitled to 8 ordinary hours plus average bonus if the employee has “qualified for payment”. Clause 19.2 gives no further indication of what the phrase “qualified for payment” means. The CFMMEU submits that a “likely explanation” is that the term “qualified” refers to the employee’s status, that is, an employee is “qualified for payment” if the employee was a permanent or fixed term employee as opposed to a casual employee. The CFMMEU conceded however that this explanation was speculation33 and did not bring any evidence to this effect at the hearing.

[36] The CFMMEU submits that this “likely explanation” is supported by Wilson’s initial memorandum of 9 January 2018 (extracted above), which makes no mention of any lack of qualification for payment on the part of the employees concerned. Further, the history of the Agreement was that Wilson did make payments to these employees in the past, meaning that employees must have “qualified for payment” in the past.

[37] If the Commission forms a view that clause 19.2 of the 2016 Agreement is unclear, the CFMMEU submits that clause 3.1 of the Agreement requires that consideration be given to the BCMI Award and whether that Award “covers” payment for employees. Clause 27.3 of the Award provides an entitlement to payment for a public holiday that falls on a “working day”. While the phrase “working day” is not defined in the BCMI
Award, there is a definition of the term “non-working day”. A “non-working day” is “any day on which an employee by virtue of the employee’s roster is never rostered to attend for rostered hours of work”. 34 The employees covered by the 2016 Agreement and the BCMI Award work a 24/7 roster and are expected to be available to work every day of the week. It follows, in the CFMMEU’s submission, that in this scenario there are no “non-working days” and all days are “working days”. If all days are “working days” then clause 27.3 of the BCMI Award entitles an employee to payment for a public holiday on any day the employee is not rostered to work (subject to the limited exceptions in the Award).

[38] The particular roster pattern that Wilson Mining employees work provides them with RDO’s, within the meaning of the BCMI Award, that would give rise to an entitlement under clause 23.6(f) of the Modern Award.

[39] In reply submissions the CFMMEU submitted that the use of the BCMI Award by Wilson Mining to attempt to give meaning to the phrase “qualified for payment” did not advance the construction task in this dispute. The 2016 Agreement is to be read in conjunction with the BCMI Award and, on a narrow reading of the Award incorporation provision, only if a matter is not spelt out in the 2016 Agreement will it be covered by the relevant BCMI Award clause. The term used in the 2016 Agreement is “spelt out” and means that a term is not found within the BCMI Award.

[40] Further, Wilson’s reliance upon the BCMI Award to give meaning to the phrase does not refer to any of the principles of agreement interpretation and merely seeks to insert or substitute words into the 2016 Agreement. Even if Wilson’s interpretation is correct, it would still support a construction that would entitle employees to payment because if entitlement to payment is guided by whether the person is scheduled to work on the particular day, the ordinary meaning of the term “scheduled” is the same as the term “rostered” as evidenced by the Merriam – Webster Thesaurus. Consistent with the CFMMEU’s interpretation of the phrase “working day” in the BCMI Award as being any day the employee can be scheduled or rostered, then not scheduling or rostering the employee brings the day within the definition of rostered day off and entitles the employee to payment.

[41] The CFMMEU submits that the provisions in the 2016 Agreement in relation to public holidays during long service leave do not support Wilson’s construction for the same reasons submitted above and that similar issues are encountered when dealing with the definitions of non-working day and rostered day off in the Modern Award. The CFMMEU also submits that its interpretation is to be preferred and is the “readily accepted” practice within the coal mining industry.

SUBMISSIONS OF WILSON MINING

[42] The submissions for Wilson Mining state that a Commercial Manager who commenced employment in 2016, conducted a review in December 2017 and determined that the Company had made public holiday payments incorrectly. Wilson Mining was paying all full time employees 8 hours at single time for public holidays whether or not they had scheduled shifts on those holidays. This practice ceased with effect from 25 December 2017 and a memo to that effect was sent to employees.

[43] In support of its construction of the 2016 Agreement Wilson Mining points to s.116 of the Act which provides that if an employee does not have ordinary hours of work on a public holiday the employee is not entitled to payment under that section. Wilson Mining also points to the provisions of the BCMI Award and to clause 3.1 of the 2016 Agreement which provides that the Agreement is read in conjunction with the Award. Wilson Mining submits that clause 27.3 of the BCMI Award supports its position by requiring that employees who are not required to work on a public holiday which would have been an ordinary working day for the employees are paid for that day subject to the requirements in relation to attendance on the day before and the day after the public holiday.

[44] In relation to clause 19.2 of the 2016 Agreement, Wilson Mining submits that as the clause begins with the words “A permanent employee” the term “qualifies for payment” refers to the employee having work scheduled on the public holiday. Wilson Mining does not accept the CFMMEU’s construction that the term “qualifies for payment” by referring to an employee’s status as a permanent employee and contends that this construction would require additional words to be inserted into the clause.

[45] Wilson Mining submits that when the BCMI Award and the 2016 Agreement are read together it is clear that the payment for a public holiday is dependent on the public holiday being a day that would otherwise have been worked by the employee and that for a member of the red crew to qualify for payment of the public holidays on 25 and 26 December 2017 ordinary hours would have been required to be scheduled for the red crew on those dates.

[46] Support for this proposition is said to be found in clause 21.3 of the 2016 Agreement which provides that where a recognised public holiday falls in a period of long service leave, on a day that would have been a working day for the employee concerned, an additional day is added to the period of long service leave. In relation to the definitions of “rostered day off or RDO” and “non-working day” in clause 3 of the BCMI Award Wilson Mining submits that the CFMMEU has misconstrued these provisions.

[47] According to Wilson Mining the definition of an RDO indicates that an employee’s roster may include scheduled hours for which they are then not required to attend for work by virtue of taking an RDO and that: “An RDO would be defined as a day on which the employee would ordinarily work as part of their scheduled shifts but they don’t work because they take an RDO”. Wilson Mining contends that the CFMMEU is relying on its incorrect interpretation of the definition of RDO in the Black Coal Mining Industry Award 2010 to enforce clause 26(3)(f) of that Award requiring that payment for a public holiday is made if it falls on an RDO. Wilson Mining does not accept this misapplication of the definition of RDO in the Award.

[48] Wilson Mining also rejects the interpretation of a non-working day referred to by the CFMMEU and asserts that a non-working day is day on which the employee does not have scheduled hours of work and accordingly employees are not entitled to payment for public holidays falling on non-working days.

[49] In conclusion Wilson Mining contends:

• The Company is paying public holidays in accordance with the provisions of s. 116 of the Act, the Black Coal Mining Industry Award 2010 and the 2016 Agreement;

• The 2016 Agreement does not in any way provide for payment to be made to a permanent full time employee unless they have been scheduled to work on the day of the public holiday;

• The CFMMEU has misinterpreted the meaning of clauses 27.3 and 27.6 of the Black Coal Mining Industry Award 2010 to suit its own agenda and the Award provides clearly for 8 hours ordinary payment only if the employee is scheduled to work;

• The words “qualified for payment” in clause 21.2 of the 2016 Agreement are not referring to being classified as a permanent employee;

• By reading the 2016 Agreement in conjunction with the Black Coal Mining Industry Award 2010 it is clear that “qualifying for payment” is referring to being scheduled to work.

[50] Wilson Mining also submits that it is not seeking to recover any past overpayment but to pay employees as they are entitled to be paid under their industrial instruments.

CONSIDERATION

[51] The starting point for the construction of a disputed provision in an enterprise agreement is the words of the provision. On its face, clause 19.2 of the 2016 Agreement entitles permanent employees not required to work a recognised public holiday to be paid for that day at 8 hours ordinary time plus the average bonus. There is also an entitlement for employees who are required to work on a recognised public holiday to be paid at triple time. The only apparent restrictions are that the employee is a permanent employee who has qualified for payment.

[52] It is notable that the payment for employees not required to work on a recognised public holiday is limited to 8 hours at single time while the payment for employees who are required to work on a public holiday is triple time for all time worked and is not limited. This is indicative that the payment for employees who do not work on a recognised public holiday is not linked to hours they would have been scheduled or rostered to work on the public holiday. In the present case if employees were rostered to work on the public holiday then by virtue of the roster worked at the Mine the employees would have been scheduled to work a 12 hour shift comprising 7 hours of ordinary time and 5 hours of rostered overtime.

[53] The disconnect between the 8 hour payment for permanent employees not required to work on recognised public holiday and actual scheduled or rostered work on a public holiday is further emphasised by the fact that the ordinary component of a 12 hour shift is 7 hours as provided in clause 8.0 and not the 8 hour payment provided for in clause 19.2 of the 2016 Agreement.

[54] The construction advocated by Wilson Mining would necessitate reading into clause 19.2 an additional requirement restricting the payment of the 8 hours at ordinary time to permanent employees who are rostered or scheduled to work on a public holiday but do not work because they are taking a day off on the public holiday either by choice or because the employer does not require any work to be performed on the particular holiday. There is no basis to read such a requirement into the clause.

[55] There is an ambiguity in the sense that the words “and has qualified for payment” appear in clause 19.2 as a prerequisite for an employee to be entitled to be paid for a public holiday where the employee is not required to work. That qualification does not attach to the entitlement to payment where an employee is required to work. There is no indication in the 2016 Agreement as to the basis upon which an employee has qualified for the 8 hour ordinary payment for a public holiday where the employee is not required to work.

[56] The CFMMEU contends that the term “and has qualified for payment” means that the employee is a permanent employee. Wilson Mining asserts that the term means that the employee had rostered or scheduled hours on the public holiday but was not required to work. I do not find either proposition persuasive. The CFMMEU’s interpretation would result in the reference to “A permanent employee” at the beginning of clause 19.2 having no work to do.

[57] In circumstances where there is an ambiguity (or in order to determine whether a provision of an agreement with an apparently plain meaning is ambiguous) consideration is given to the context in which the Agreement operates. Context may include the text of the Agreement viewed as a whole, the place and arrangement of the disputed provision in the Agreement and the legislative context in which the agreement was made and under which it operates. In the present case, context also includes the terms of the BCMI Award the relevant clauses of which – in accordance with clause 3 of the 2016 Agreement – cover any matter not specifically spelt out in the Agreement.

[58] The context also includes predecessors to the BCMI Award which include the P&E Award and the Interim P&E Award. In correspondence to the parties sent after my decision in this matter was reserved, I drew their attention to provisions of the P&E Award indicating my view that they were relevant and invited further submissions on this point. The parties made submissions in response which I have taken into account. I first consider the BCMI Award.

[59] The first thing to note is that the ordinary hours of work for employees covered by that Award are defined by reference to the roster cycle. The BCMI Award does not provide for a weekly spread in terms of days on which ordinary hours can be worked. At clause 21 the Award simply provides that the ordinary hours will be an average of 35 per week averaged over the roster cycle. Ordinary hours may be worked on any day of the week and there are prescribed penalty payments for work on Saturdays and Sundays. By virtue of clause 23 the employer can determine the type of roster to be worked and the shift length, provided that shifts of more than 10 hours must be agreed between the employer and the majority of employees concerned.

[60] Rostered days off under the BCMI Award are not accrued by virtue of employees working additional ordinary hours with hours above a certain level being accumulated to allow the employee to take an RDO. Instead, rostered days off, as defined in clause 3 of the BCMI Award, are days on which an employee by virtue of the employee’s roster is not rostered or scheduled to attend for work. Rostered days off are days when some employees are working and some are not, in contrast with non-working days when no employee is rostered or scheduled to work. The employer can determine the roster cycle (defined in clause 3 as the period over which the roster repeats and the employee’s ordinary hours average 35); the pattern of the shifts that will be worked in the roster cycle including days where work is rostered for particular crews and days off; the length of the shifts and the numbers and groupings of employees (panels or crews) who will work the roster and the manner in which they will interact with each other to work the roster pattern.

[61] The employer is also entitled to determine how the ordinary hours and the overtime hours will be allocated through the roster so that the average of 35 ordinary hours per week over the roster cycle is achieved. Overtime allocated within the roster is rostered overtime as defined in clause 3 of the Award and a shift within the roster can be made up of ordinary time and rostered overtime (reasonable additional hours required to be worked by an employee as an integral part of the employee’s roster). By virtue of clause 27.5 of the Award the employer is also entitled to nominate which public holidays will be worked in the following 12 months provided that the employer nominates two public holidays where work will not be carried out. Clause 27.6 of the Award also provides that employees working Monday to Friday shifts of up to 8.5 ordinary hours cannot, as an integral part of their roster, be rostered for ordinary hours on public holidays.

[62] As previously stated, there is a clear distinction in clause 3 of the BCMI Award between “rostered days off or RDO’s” and “non-working days”. An employer may implement a roster which operates within a spread of days each week that is less than seven days – for example Monday to Friday, or a roster that operates over 24 hours per day, seven days per week for 52 weeks of the year. Clause 3 of the BCMI Award provides for 7 day or 6 day rosters but these rosters are not exhaustive.If an employer implements a roster which does not operate on certain days of the week so that no work is rostered such days, they are non-working days for the employees working in accordance with that roster, as defined in clause 3 of the Black Coal Industry Award 2010.

[63] However, where the employer implements a roster which covers 24 hours per day, seven days per week for 52 weeks of the year, any day where an employee working in accordance with that roster is not required to work by virtue of the roster, is a rostered day off as defined in clause 3 of the Award. The term “by virtue of the roster” means that the roster operates on the day in question so that some employees are required to work and others are not required to work as distinct from a roster where no employee is rostered to work so that the day is a non-working day. In circumstances where the roster operates on the day in question so that some employees covered by the roster are rostered to work and others are rostered off, the employees who are rostered off are “entitled to a rostered day off”. Such a day is also a “working day” for the purposes of clause 27.3 of the Award because it is not a “non-working day” as defined in clause 3. In short a working day does not attach to particular employees but to the roster which stipulates that work will be performed on that day.

[64] Clause 23.6(f) of the Award provides that an employee who is entitled to an RDO which falls on a recognised public holiday is entitled to be either paid at the employee’s classification rate or credited with one day for each public holiday payable at ordinary rates. The award classification rate for the purposes of such payment is the ordinary hours required to be worked. Clause 27.3 provides a qualification to the entitlement for an employee not required to work on a public holiday to be paid for that day, by requiring that the employee is entitled to be paid unless he or she is absent without good and sufficient reason on the last working day immediately before the holiday or the first working day after the holiday.

[65] The provisions of the BCMI Award in relation to payment for public holidays are intended to establish a payment regime whereby employees who are rostered to work on a public holiday are paid for actual hours worked at the rates in clause 27.4 while employees working under the same roster but who are not rostered to attend for work by virtue of the roster, are entitled to payment at their ordinary rates for the day as provided in clause 23.6(f) of the Award provided that they meet the requirements in relation to attendance in clause 27.3. The effect is that employees who are rostered off get a benefit for the public holiday without losing the benefit of the day off. This is reflected in the options which the employer has to either pay the employee for the ordinary hours that the employee would have worked if rostered on (as opposed to the actual hours) or give the employee an additional day off.

[66] It is clear from the evidence that Wilson Mining has implemented a roster at Goonyella Riverside Mine which operates 24 hours per day, 7 days per week over 52 weeks of the year. It is also clear that the employees working that roster interchange with each other or rotate through the roster so that it cannot be said that there are days when employees are never rostered to attend for rostered hours of work.

[67] The 2016 Agreement is silent with respect to definitions of non-working day; ordinary hours; ordinary week’s pay; roster, roster cycle, rostered day off; rostered hours and rostered overtime. As provided in clause 3 as none of these matters are “spelt out” in the 2016 Agreement, the provisions of the BCMI Awardcover those matters and operate in conjunction with Agreement provisions.

[68] In accordance with those definitions the days off in the roster worked by the employees in question are days on which those employees, by virtue of the roster, are not rostered to attend for rostered hours of work. The rostered days off are also working days because they are not “non-working days”.

[69] By virtue of clause 3 of the 2016 Agreement those definitions operate in conjunction with clause 19.2 of the Agreement. As a result, permanent employees who are rostered off on a public holiday are entitled to a rostered day off as defined in the BCMI Award. Further the Agreement does not contain a provision that specifically spells out the provisions of clause 23.6(f) of the BCMI Award. As a result that clause operates so that employees are entitled to payment for a public holiday that falls on a rostered day off. The only inconsistency is that under the 2016 Agreement employees are entitled to payment of 8 hours for each holiday falling on a rostered day off and the employer does not have the option to give employees an additional day off. The Agreement is silent in relation to the subject matter of clause 23.6(f) of the Award, and accordingly that provision operates so that that provision then the Award provision applies.

[70] In my view there is no provision of the 2016 Agreement which is inconsistent with clause 23.6(f) of the BCMI Award.

[71] I am also of the view that the term “and has qualified for payment” in clause 19.2 of the 2016 Agreement refers to the attendance requirements in clause 27.3 of the Black Coal Mining Industry Award 2010. In this regard I do not accept that propositions advanced by the CFMMEU or Wilson Mining. I base this view on the fact that the Interim P&E Award at clause 14(f)(1) contained the same attendance requirements as are found in clause 27.3 of the current Award and the former clause 14(f)(1) was preceded by the word: “Qualifying”. If my view in this regard is wrong, it remains the case that the term “and has qualified for payment” in clause 19.2 of the 2016 Agreement does not contradict the construction of the Agreement that I favour.

[72] The construction of the 2016 Agreement that I favour is also consistent with the NES provisions in relation to payment for public holidays. Firstly, by virtue of s. 55(4) of the Act, modern awards or enterprise agreements may include provisions that supplement the NES provided such terms are not detrimental to an employee in any respect when compared to the NES. The effect of s. 55(4) is that where a modern award or enterprise agreement provides for terms and conditions of employment that are more beneficial to employees than those in an NES provision, the NES provision does not derogate from those terms. Neither can an employer rely on a less beneficial term in the NES to remove or refuse to provide a more beneficial entitlement that an employee has under a modern award or enterprise agreement.

[73] Secondly, in relation to public holidays, Division 10 of Part 2.2 of the Act is directed at establishing a minimum entitlement for employees to be absent on a public holiday in the place where the employee is based for work purposes. Section 114(1) establishes that right. It is subject to s. 114(2) which provides that an employer may reasonably request an employee to work on a public holiday and the circumstances where an employee may refuse the request. Section 115 lists the public holidays to which the provisions apply. Section 116 of the Act provides an entitlement to payment for an employee absent on a public holiday, in certain circumstances. Those circumstances, as provided in the note to s. 116 are that the employee must have ordinary hours of work on the public holiday in order to be entitled to payment. The effect is that an employee who usually works on a particular day of the week, and who is absent on that day because it is a public holiday, is entitled to payment for ordinary hours that would have been worked on that day if it was not a public holiday. This is apparent from the following illustrative examples given in the Explanatory Memorandum for the Fair Work Bill 2008 at item 461:

“Erika usually works overtime in addition to her ordinary hours of work on Tuesdays, receiving penalty rates for the overtime hours under a modern award. Erika is absent on the public holiday on Tuesday 26 January 2010. Erika is entitled to her base rate of pay for her ordinary hours. She is not entitled to the overtime hours she would have worked had it not been a public holiday.

Erika’s colleague Toby is a part-time employee who is rostered to work Wednesday to Friday only. As Toby’s ordinary hours of work do not include Tuesdays, Toby is not entitled to payment for the public holiday on Tuesday 26 January 2010.”

[74] The terms of the 2016 Agreement and the BCMI Award supplement the NES. As I have previously observed, if Wilson Mining adopted a roster which operated Monday to Friday so that Saturdays and Sundays were non-working days as defined in clause 3 of the Black Coal Mining Industry Award 2010, no employee working that roster would be entitled to payment for a public holiday falling on a Saturday or Sunday if the employee did not work on such day. Neither is the construction that I favour inconsistent with Full Bench authority in test cases involving public holiday provisions where it has been recognised that some awards appropriately recognise that an employee who is entitled to a rostered day off should not lose that benefit by virtue of it coinciding with a public holiday.

[75] The construction I favour is also consistent with the BCMI Award and its predecessors, which have long established that employees working rosters of the kind being worked by Wilson Mining employees are entitled to payment for public holidays which coincide with days when they are not rostered to work by virtue of a roster that operates on the particular public holiday.

[76] Another contextual matter supporting the construction of the 2016 Agreement that I favour is the way that rosters in the coal industry operate. Employees often work long hours in concentrated periods and then have blocks of days off. The employees are required to commit to a roster and to be available in accordance with that roster. They have little if any choice about when they will take a rostered day off and those days are allocated in advance throughout the roster. The employer has the right to operate a roster on any day the employer requires work to be performed, including weekends and public holidays. Provisions of coal industry awards (and other awards) which entitle employees to be paid for public holidays falling on rostered days off are not new and are directed to addressing the position of employees who do not work on a public holiday by virtue of the rotation or cycles of the roster under which they are required to work. Employees who actually work on a public holiday are paid a penalty to reflect the fact that it is a public holiday. Employees who do not work but who are subject to the same roster are paid for public holidays where they are not required to work because the roster cycle or rotation has resulted in them having a day off which coincides with the public holiday so that they lose the benefit of the day off.

[77] I do not accept the arguments to the contrary advanced by Wilson Mining. For the reasons set out above, s.116 of the Act does not support the Company’s position and does not deal with the circumstances of the present case where employees are working a roster under which they can be required to work on any day in a year in accordance with the roster pattern. There is also evidence that employees are required to be available for emergency work on days that they are rostered off unless they take annual leave on such days. The employees have limited capacity to work other than in accordance with the roster and the submission of Wilson Mining to the effect that days when the roster does not require employees to work are not rostered days off, is contrary to the roster and to the definition of rostered days of in the BCMI Award.

[78] The submission that a rostered day off for Wilson Mining employees working the roster in the present case, is a day that they are rostered to work but decide to take as a rostered day off, is also completely at odds with the reality of the roster. There is little if any capacity for an employee working the roster in evidence in these proceedings, to take a rostered day off on a day that he or she is rostered to work.

CONCLUSION

[79] I answer the questions for arbitration as follows:

Employees working on ‘red crew’ are employed as full time permanent employees under [the Agreement]. As per the schedule provided, they were not scheduled to perform work on Christmas Day and Boxing Day 2017.

Question:

On a proper construction of the Agreement, were these employees entitled to payment under the Agreement?

Answer:

Yes.

Question:

And, if so, what payment were they entitled to?”

Answer:

8 hours ordinary time at the employee’s classification rate plus the average bonus as provided in clause 19.2 of the Wilson Mining Services Pty Ltd – CFMEU Qld Enterprise Agreement 2016.

DEPUTY PRESIDENT

Appearances:

Mr C. Newman on behalf of the CFMMEU.

Ms M. Campbell on behalf of Wilson Mining.

Hearing details:

Brisbane.

28 August 2018

and

4 March 2019.

Printed by authority of the Commonwealth Government Printer

1 AE418472.

2 [2016] FWCA 2135.

3 Exhibit A1.

4 Exhibit A2.

5 Email from Ms M Campbell, Friday, 24 August 2018.

6 Wilson Mining Services Pty Ltd – CFMEU Workplace Agreement 2005, clause 20.2.

7 Wilson Mining Services Pty Ltd – CFMEU Workplace Agreement 2008, clause 19.2.

8 Wilson Mining Services Pty Ltd – CFMEU QLD Enterprise Agreement 2011, clause 19.2.

9 AW774609.

10 S5017.

11 Fair Work Act 2009 s55(4)(a).

12 Ibid s.55(4)(b).

13 Ibid s.55(4).

14 [2017] FWCFB 3005 at [14].

15 [2017] FWCFB 4487.

16 [2014] NSWCA 184 at [71] – [85].

17 Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.

18 Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].

19 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].

20 Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing)

21 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] – [85].

22 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].

23 Kucks v CSR Limited (1996) 66 IR 182 at 184.

24 (1993) FCR 511.

25 Ibid at 518.

26 Exhibit A1, Annexure SP-1.

27 Ibid, Annexure SP-2.

28 Ibid, Annexure SP-3.

29 Ibid, Annexure SP-4.

30 Ibid, Annexure SP-5.

31 Submissions on behalf of the Applicant at paragraph 15.

32 Reply submissions on behalf of the Applicant at paragraph 4.

33 Reply submissions on behalf of the Applicant at paragraph 4.

34 Black Coal Mining Industry Award 2010, clause 3.1.

Construction, Forestry, Maritime, Mining and Energy Union Manufacturing Division v Wilson Mining Services Pty Ltd

[2019] FWC 100

22 JULY 2019

DECISION

LEGISLATIVE PROVISIONS