Construction, Forestry, Maritime, Mining and Energy Union the Maritime Union of Australia Division v Hutchison Ports Australia T/A Hutchison Ports
[2022] FWC 3331
•19 DECEMBER 2022
| [2022] FWC 3331 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division
v
Hutchison Ports Australia T/A Hutchison Ports
(C2022/1083)
| DEPUTY PRESIDENT EASTON | SYDNEY, 19 DECEMBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – remuneration for work on a public holiday – annual salary – consistency – historical provisions.
The Maritime Union of Australia Division of Construction, Forestry, Maritime, Mining and Energy Union (MUA) referred a matter in dispute to the Fair Work Commission regarding remuneration for work on public holidays under the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (Agreement).
Conciliation was not successful and the Commission has jurisdiction to resolve the dispute by way of arbitration in accordance with clause 14.4.2 of the Agreement.
Clause 29.12 of the Agreement requires Hutchison Ports Australia (Hutchison Ports) to pay employees who work on a public holiday “at the Award public holiday rates of pay.”
Hutchison Ports argues that the term “Award public holiday rates of pay” refers to both the percentage loadings in the Stevedoring Industry Award 2020 (Stevedoring Award) and the corresponding ordinary hourly rates in that award. The MUA argues that the term “Award public holiday rates of pay” only refers to the percentage loadings in the Stevedoring Award and that the award percentages must be applied to the ordinary hourly rates in the Agreement.
The hourly rates in the Agreement are significantly higher than the hourly rates in the Stevedoring Award.
Both parties argue that words used in clause 29.12 of the Agreement have a “clear and unambiguous” meaning in their ordinary context. However, the parties do not agree on what that clear and unambiguous meaning is.
For the reasons that follow I have determined that clause 29.12 of the Agreement requires Hutchison Ports to pay the percentages stated in clause 21 of the Stevedoring Award (250% or 300%), calculated at the ordinary time rates under the Stevedoring Award.
Interpretation Principles (General)
In AMWU v Berri Pty Limited (2017) 268 IR 285 at 310, [2017] FWCFB 3005 at [114] (“Berri”) the Full Bench distilled principles for interpreting enterprise agreements. Those principles are often quoted and are not controversial.
The Federal Court has applied substantially the same approach. In James Cook University v Ridd (2020) 278 FCR 566, (2020) 298 IR 50, [2020] FCAFC 123 at [65], the Full Court of the Federal Court summarised the relevant principles applicable to the interpretation of an enterprise agreement:
(i)The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii)A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii)Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv)Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v)Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi)A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii)Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
On review in Ridd v James Cook University (2021) 310 IR 109, [2021] HCA 32 at [17] the High Court observed:
“… Both parties sought to resolve any tension between the Enterprise Agreement and the Code of Conduct by interpretation of the Enterprise Agreement itself, particularly cl 14. In that process of interpretation, an important matter of context is the industrial nature of the instrument. Industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests.”
The Agreement, the Stevedoring Award and Annualised Salaries
The annual salaries payable under the Agreement include payment for ordinary hours of work in accordance with rosters set within the Agreement and include payment for shift premiums. The shift premiums are annualised by averaging the penalty loadings payable over an eight-week recurring roster.
Unlike the predicable shift premiums incorporated into the salary, payments for public holidays are not annualised in the Agreement. The entitlements for any particular public holiday depend on when the public holiday falls, the rostered hours, whether the employee performs work on the day, and so on. Clause 16.2 and 16.3 of the Agreement explicitly state that the public holiday benefits in the Agreement are to be paid in addition to the annual salary:
“16.2 The Annual Salary for a Permanent Full Time Employee is inclusive of the:
16.2.1 Ordinary Rate of Pay of the appointed Level
16.2.2 Shift premiums that would otherwise be payable in accordance with the provisions of this Agreement.16.3 Where a Permanent Full Time Employee is engaged on an Annual Salary, the following benefits will be payable in addition to the Annual Salary in accordance with this Agreement when worked in any shift:
16.3.1 Higher duty payments (upgrades)
16.3.2 Public Holidays
16.3.3 Meal Allowance
16.3.4 Shift Extensions or Pre-Starts
16.3.5 Overtime.”The dispute concerns payment to workers who are rostered to work on a public holiday and who attend work. Clause 29.12 of the Agreement is in the following terms:
“29.12 Employees who work on a Public Holidays shall be paid at the Award public holiday rates of pay.”
Clauses 30.2 and 21.5(b) of the Stevedoring Award contain the relevant public holiday entitlements:
“30 Public Holidays
30.2 Where an employee works on a public holiday they will be paid in accordance with clause 21.3(a) or 21.5(b).
21.5 Overtime rates—full-time and guaranteed wage employees—shiftwork employees
…
21.5(b) A full-time or guaranteed wage shiftworker required to work overtime that is not continuous with the commencement or conclusion of a shift in which their ordinary hours of work are performed will be paid:
(i) 200% of the ordinary hourly rate for Monday to Saturday;
(ii) 250% of the ordinary hourly rate for Sunday;
(iii) 250% of the ordinary hourly rate for day and evening shifts worked on a public holiday; and
…
(iv) 300% of the ordinary hourly rate on a night shift on a public holiday.”
It is important to note that the Stevedoring Award does not include any provision for annualised salaries. Further, the combined effect of clauses 30.2 and 21.5(b) is that time worked under the Stevedoring Award on a public holiday, be it ordinary rostered hours or overtime hours, is paid at overtime rates. Apart from tradespersons (see clause 30.5), there does not seem to be any entitlement to an additional day off if a worker is rostered to work on a public holiday and in fact works. Therefore the amounts provided for in clause 21.5(b) are the only amounts payable under the Stevedoring Award for time worked on a public holiday. By contrast, in the Agreement the amounts prescribed by the Stevedoring Award are in addition to the annual salary.
The ordinary hourly rates in the Agreement are approximately 70-80% higher than the Stevedoring Award. As such, there is a significant difference in the public holiday hourly rates depending on how clause 29.12 is applied.
The evidence
Hutchison Ports led no evidence at all.
The MUA led evidence from Mr Warren Smith the Divisional Deputy National Secretary of the MUA. He was appointed as the Deputy National Secretary in 2021 and prior to that was the Assistant National Secretary of the MUA. Mr Smith says:
“In my thirty-year experience in the maritime industry, I have never come across a waterfront enterprise agreement that has used the Award minimum rate of pay for any entitlements or renumeration. Not one HPA enterprise agreement, from the inception of the 2013 Agreement to the 2021 Agreement, have had Award minimum rates apply to the payment of entitlements to HPA employees.
For the purposes of paying public holiday entitlements, HPA have made payments based on the Ordinary Rates listed in the relevant 2013, 2015 and 2021 Agreements. I am aware of this in my role as official at the MUA and my experience with HPA employee entitlements under the various HPA Agreements.”
Evidence of historical provisions
The Sydney International Container Terminals Pty Limited (SICTL) Brisbane Container Terminals Pty Limited (BCT) Maritime Union of Australia Terminals Greenfields Enterprise Agreement 2013 (the 2013 Agreement) contained the following Public Holiday provision (clause 19.34):
“Employees who work on a public holiday shall be paid at the Award public holiday rates of pay and no hours will be counted towards the annual hours total. Employees who work on a voluntary public holiday shall also be entitled to a day in lieu.”
This formulation was not changed when the parties made the Sydney International Container Terminals Pty Limited (SICTL) and Brisbane Container Terminals Pty Limited (BCT) and Maritime Union of Australia (MUA) Enterprise Agreement 2015 (the 2015 Agreement).
Some further explanation of this clause in the 2013 and 2015 agreements is necessary. Four days were deemed “voluntary public holidays”, being Good Friday, Anzac Day, Labour Day and Picnic Day. Despite the descriptor, employees were deemed to be available to work voluntary public holidays unless they make application to be off, and some employees could be compelled to volunteer “where insufficient employees with the necessary skills volunteer to the extent required to cover ship working requirements on that day.” Other arrangements were in place in relation to Christmas Eve, Christmas Day and New Year’s Day.
Neither the 2013 Agreement nor the 2015 Agreement contained annualised salaries. The public holiday entitlements were the whole of the benefit provided to employees who worked their rostered shift on a public holiday.
There was evidence of a local arrangement in place under the 2015 Agreement that conferred public holiday benefits in addition to the annual salary. The public holiday benefits were calculated by reference to ordinary time earnings. Workers who were rostered on and worked on a public holiday received:
(a)day shift workers: Salary + (1.5 x Ordinary Rate) + Day in Lieu; and
(b)night shift: Salary + (2 x Ordinary Rate) + Day in Lieu.
By this local arrangement workers received the equivalent of either 3.5 days or 4 days of benefits through payment or time in lieu.
There is also evidence that public holiday benefits were not calculated by reference to award rates under previous enterprise agreements.
Evidence of earlier bargaining
Bargaining to replace the 2015 Agreement took some time. In the course of negotiating the 2021 Agreement Hutchison Ports proposed different forms of words for the relevant public holiday provision. In June 2019 and also July 2020 Hutchison Ports proposed the following formulation:
“In circumstances where an Employee is required to work on a Public Holiday, the time worked will be paid at the rate of double time and a half of the Ordinary Rate provided that where an Employee works the night shift they will be paid at the rate of triple time of the Ordinary Rate.”
Mr Smith says that he agreed to Hutchison Ports’ formulation on behalf of the workers he represented.
In January 2021 a further formulation was proposed by Hutchison Ports:
“Employees who work on a public holiday shall be paid at the Award public holiday rates of pay and no hours will be counted towards the annual hours total. Operations Employees who work on a voluntary public holiday shall also be entitled to a day in lieu. Maintenance Employees will accrue a day in respect of any shift worked on a public holiday.”
Mr Smith’s evidence in this regard was:
“I understood the reference to ‘Award rates of public holiday rates of pay’ to be those rates of pay listed in subclauses 21.3(a) and or 21.5(b) of the Stevedoring Industry Award 2020 (Award). I understood that the shift premiums in subclauses 21.3(a) and 21.5(b) of the Award were to apply to the Ordinary Rate of pay in the 2021 Agreement, as was first put to me by way of email from Ms Mihalopoulos on 11 June 2019 and agreed in previous negotiation meetings and drafts of the 2021 Agreement.”
Relatively late in the bargaining and drafting process, June 2021, the draft agreement stated that public holiday entitlements are in addition to benefits included in the annual salary.
The Contentions
The MUA’s primary argument is that all of the other shift premiums under the Agreement are payable at either the ordinary rates or the secondary rates of pay and therefore, as a matter of consistency, clause 29.12 should also be read as referring to either the ordinary rate or the secondary rate.
The MUA says that the history informs the interpretation of the clause 29.12 and says that the reference rates remained unchanged despite the change of wording in the 2021 Agreement.
The MUA argued that clause 29.12 (ordinary hours on a public holiday) must be considered alongside clause 27.8 (overtime on a public holiday).
Clause 29.8 of the Agreement allows Hutchison Ports to compel employees to work ordinary hours on a public holiday and therefore, the MUA says, clause 29.12 deals with ordinary hours on a public holiday as “involuntary” work.
By contrast, clause 27 of the Agreement requires Hutchison Ports to pay overtime when additional work is performed on rostered off shifts. These additional hours can be seen as voluntary (meaning optional rather than unpaid) because employees have made a conscious decision to volunteer for work.
The overtime rates for public holiday work in clause 27.8 match the overtime public holiday penalty rates in the Stevedoring Award but must be paid at the Secondary Rate of Pay. The Secondary Rates of Pay are less than that ordinary rates of pay in the Agreement but significantly higher than the ordinary rates of pay in the Stevedoring Award.
The overtime provisions of the Agreement require overtime for shift extensions on public holidays to be paid at either triple time and half or at quadruple time, calculated at the Secondary Rate of Pay (clause 27.7). These rates are significantly more than the Stevedoring Award overtime rates for public holidays (2.5X and 3X). If Hutchison Ports’ interpretation is correct then rates jump by almost double on the public holiday when overtime is worked after the rostered hours. The MUA says this is a “complete inconsistency” that finds no support in the Agreement.
The MUA seems to argue that it would be inconsistent for the entitlements to be less for involuntary work on a public holiday compared to voluntary overtime work. Therefore, they say, the public holiday penalty rates should be applied to the Agreement hourly rates under clause 29.12 for ordinary hours worked on public holidays to be consistent with the overtime rates under the Agreement for overtime hours worked on public holidays.
The consistency referred to by the MUA is consistency between 29.12 and the surrounding clauses that touch upon similar circumstances.
The MUA provided comparison calculations suggesting that on its construction a permanent part-time employee who works their rostered evening shift on a public holiday would receive less than what they would receive for a normal weekday evening shift, because of the significant difference between the Agreement hourly rates and the Stevedoring Award hourly rates. The differential is even greater when comparing evening weekend shifts for permanent part-time employees.
Similarly, the MUA noted in its submissions that if Hutchison Ports is correct, the additional hourly rates for public holidays for permanent employees will be less than the evening shift rates for part time employees – the former being paid 2.5 time the Stevedoring Award hourly rates and the latter being paid 1.5 times the Agreement rates:
(a)a part-time Level 1 employee working an evening shift is paid $65.27 per hour – being 150% of the Agreement rate (1.5 x $43.51);
(b)[if Hutchison Ports is correct] a permanent employee the same evening shift on a public holiday is paid $63.10 – being 250% of the Stevedoring Award rate (2.5 x $25.24).
Hutchison Ports relied on clause 6 of the Agreement to argue that any “arrangements” that might have applied prior to the making of the 2021 Agreement are wholly replaced by the Agreement. Clause 6 is in the following terms:
"6. PREVIOUS AGREEMENTS RESCINDED AND/OR VARIED
6.1 This Agreement shall replace and rescind any existing Agreement whether certified or not, memorandum of understanding, deed, exchange of correspondence, work practice(s), arrangement(s), written or unwritten which applied prior to the commencement of this Agreement and which regulated the terms and conditions of employment of Employees to whom this Agreement applies.
6.2 In the event of any inconsistency between Part A and any Part B Schedule contained in this Agreement, the Part B Schedule will prevail to the extent of the inconsistency.”
Hutchison Ports called in aid the provisions of the Agreement that make reference to annual salaries and/or calculate payments by reference to annual salaries (clauses 16.1-3, 28.2, 28.22 and schedules 3, 4, 5 and 6 of Part B) and the distinction drawn in various provisions of the Agreement between the “ordinary rate of pay” and the “annual salary” (clauses 13.6, 13.8, 16.4, 28.1-2, 28.16, 28.22 and 25.5).
Hutchison Ports submitted that there is no logical basis for the substitution of the ordinary rates of pay as specified in the Agreement where the words "Award Public Holiday Rates of Pay" are used in subclause 29.12. Hutchison Ports says:
“There is nothing in the context of Subclause 29.12 of the 2021 EA that would suggest anything other than the ordinary meaning of the words used. The actual words of the Subclause do not bend to the Applicant Union's construction. To the contrary, they point to a contradiction. Hutchison Ports submits that the text points firmly in the direction advanced by Hutchison Ports. The Fair Work Commission should apply what the 2021 EA actually says, not what the Union contends it was meant to say or would otherwise have said.”
By reference to the principles stated by the Full Bench in Berri, Hutchison Ports says:
(a)consideration of the ordinary meaning of the relevant words, viewed with reference to the text of the Agreement as a whole supports the construction advised by Hutchison Ports;
(b)the MUA is attempting to use s.739 to rewrite the Agreement to achieve what the MUA regards as a fair or just outcome;
(c)the common intention of the parties cannot be gleaned from any prior instrument;
(d)there is no ambiguity within clause 29.12 and therefore no recourse to evidence to support some common understanding of what was agreed;
(e)industrial practices that may have existed prior to the Agreement do not take the place of the terms of the instrument itself;
(f)discussions between the parties in the negotiation stage do not, without more, show what was actually agreed between the parties;
(g)the intention of clause 29.12 is easily apparent;
(h)the MUA’s interpretation is inherently implausible and requires a contorted reading of clause 29.12;
in this case there is no objective history that could or would inform the construction of clause 29.12; and
(j)“the subjective interpretation of the [MUA] is, in the circumstances, an attempt to give effect to an externally derived conception of what the [MUA] believed the intention or purpose of Subclause 29.12 of the 2021 EA was in the circumstances.”
Hutchison Ports says there is no anomaly between the full-time public holiday rates in clause 29.12 and the rates for part-time employees, but merely a difference in the extra amount that the parties have agreed each group to be paid.
Consideration
Consideration - the ordinary meaning of the words, read as a whole and in context
There are two separate elements to the amount an employee receives for working on a public holiday:
(a)the percentage public holiday loading; and
(b)the pay rate to which the loading is applied.
Even though the words of clause 29.12 literally only refer to “rates of pay”, both parties agree that the Stevedoring Award public holiday percentage loadings are incorporated.
It is open to find that clause 29.12 intentionally refers to the Stevedoring Award percentage loadings and intentionally does not specify the rate to which those loadings must be applied. The MUA’s interpretation necessarily relies on this intention so that the ordinary time rates of pay can apply even though they are not specified.
However, in every other clause of the Agreement where a loading is specified, the underpinning rate is also specified. The Agreement actually refers to three different “rates”: ordinary time rates of pay, secondary rates of pay and the Award public holiday rates:
(a)shift premiums are said to apply to the ordinary rates of pay (clause 16.10);
(b)leave entitlements accrue at the ordinary rate of pay (clause 28.1);
(c)jury service entitlements and redundancy entitlements are set by reference to the ordinary rate of pay in the Agreement;
(d)clause 28.16 specifies that personal leave shall be paid at the relevant ordinary rate of pay under the Agreement;
(e)overtime worked as part of a shift extension is paid at the Secondary Rates of Pay (clause 27.7); and
(f)employees who work on a public holidays shall be paid at the Award public holiday rates of pay (clause 29.12).
The secondary rates of pay are approximately 75% of the ordinary rates of pay under the Agreement (clause 16.11), which is further evidence of the parties paying specific attention to the pay rates to which different loadings are applied.
Whilst it is open to find that clause 29.12 is intentionally silent on the underpinning rates of pay, it is also open to find that the words “the Award public holiday rates of pay” specify the underpinning rates of pay.
The ordinary meaning of the words in clause 29.12, read in the above context that every other comparable surrounding provision in the Agreement specifies the rate at which the entitlement is be paid, point towards clause 29.12 specifying both the loadings and the rates to which the loadings must be applied. Otherwise clause 29.12 would be the only provision of its kind in the Agreement that does not explicitly specify both the loading and the rate to which the loading is applied.
The MUA’s case does not satisfactorily explain how or why the unique terminology used in clause 29.12 should not be read to mean something different to the other rates referred to in the Agreement.
Consideration of context – historical provisions and annual salaries
Sometimes award and agreement histories can illuminate the present, particularly if a particular provision is “a product of history, out of which it grew to be adopted in its present form.” As Burchett J said in Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518, [1993] FCA 72 at [7]-[8]:
“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 source of their language, nor should a legal document, including an award, be so read.
That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter… Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice… Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language…”
The history described above not shed any light on the words used in clause 29.12, and it certainly does not bring any ambiguity or obscurity that is not seen on the face of the Agreement itself.
One important difference between the 2015 and 2021 Agreements is the introduction of the annual salary arrangement. Unlike other agreements where annualised salaries tend to be optional, every full-time employee under the Agreement is paid an annual salary. In my view this is a significant development that provides an important context to understand the terms of clause 29.12 and diminishes the relevance of the previous arrangements.
To the extent that it might be said that clause 29.12 should be applied in a way consistent with earlier agreements, the strength of that argument is significantly reduced because of the introduction of the annual salary. In other words, the nexus between the terms of clause 29.12 and any earlier arrangements is significantly reduced by the introduction of the annual salary.
Clause 29.12 is not a mere continuation or replication of the previous provision because, unlike any previous provision in an agreement, the amounts payable under clause 29.12 are in addition to the annual salary. Neither is clause 29.12 a continuation of the public holiday provisions of the local agreement made under the 2015. Although public holiday entitlements under the local agreement were paid in addition to the annual salary, the calculation of the additional entitlement (see paragraph [23] above) is quite different.
If the MUA’s interpretation is right (and clause 29.12 delivers the same benefits to employees as the 2013 and 2015 agreements) then the change brought about by the 2021 Agreement is that employees now receive one more day’s pay when working public holidays than they did under the previous agreement. The public holiday percentages are unchanged between the 2015 and the 2021 agreements, but the percentage is now paid in addition to the annual salary.
If the entitlement changed because of new wording agreed upon by the parties, and there is no suggestion of a common mistake or a deception, then evidence of a different historical entitlement is merely evidence of the current agreement bringing about a change.
Consideration – consistency and alleged anomalies
The MUA says that using the Stevedoring Award hourly rates is inconsistent with surrounding provisions in the Agreement that touch upon similar circumstances and creates an anomaly. The MUA argues that using the Stevedoring Award rates of pay to calculate public holiday entitlements would be inconsistent with the rest of the Agreement, insofar as no comparable part of the Agreement incorporates the Stevedoring Award hourly rates.
Implicit in this argument is the assumption that clause 29.12 does not specify the rate of pay to which the loadings are applied and is therefore silent in this regard. The MUA says that if clause 29.12 is silent then the gap can be filled by applying the ordinary rates of pay in order to be consistent with the surrounding provisions.
The first problem with the MUA’s argument is that the surrounding provisions in the Agreement are not exactly consistent. Most comparable provisions refer to the ordinary rate of pay however the overtime provisions in the Agreement specifically refer to the secondary rate of pay. The MUA’s argument would be stronger if the only rate referred to in the Agreement is the ordinary rates of pay. The distinction between voluntary and involuntary work on public holidays does not take the MUA’s argument any further.
The more consistent way to read clause 29.12 is to assume that it, like all of the other comparable provisions, specifies both the penalty loading and the rate to which it is applied.
The second problem is that the amounts actually payable are not anomalous – at least not anomalous in the way the MUA would have me find. The Agreement rates are approximately 170%-180% of the Stevedoring Award rates. If Hutchison Ports’ interpretation is applied the total amount to be paid for a full shift worked on a public holiday is approximately 2.5 days’ pay at the Agreement rates, which is approximately 4.2 days’ pay at the Stevedoring Award rates. Such an outcome is not objectively anomalous. For completeness I note that if the MUA’s interpretation is applied the total amount to be paid for a full shift worked on a public holiday is approximately 3.5 days’ pay at the Agreement rates, and approximately 6 days’ pay at the Stevedoring Award rates.
As Hutchison Ports says, there is no anomaly between the full-time public holiday rates in clause 29.12 and the rates for part-time employees, but merely a difference in extra amount that the parties have agreed each type of employee is to be paid. It just so happens that the amount that full-time employees receive for working on a public holiday in addition to their salary, is less than what a part-time employee might receive for their normal shift. Full-time employees do not receive less on a public holiday than part-time employees receive on their normal shift.
Nor is the apparent differential between part-time public holiday rates under the Agreement and part-time evening shift rates anomalous. Each rate matches or betters the underpinning award rates.
Hutchison Ports’ submission regarding clause 6 of the Agreement does not take the matter any further – neither party has submitted that the 2015 Agreement or the local arrangement made under the 2015 Agreement still apply.
I do not need to deal with Hutchison Ports’ submissions about the MUA’s motivations for advancing its particular interpretation of clause 29.12. The MUA’s interpretation is not inherently implausible and does not require a contorted reading of the clause. I do not see that the current dispute is an attempt to re-write the provision.
The words of clause 29.12 that were agreed between the bargaining representatives and voted on by the employees could have been much clearer. Referring to the Stevedoring Award percentage public holiday loadings is a logical and common drafting device. Every other comparable provision specifies both the loading and the rate to which the loading is applied. With the benefit of hindsight it would have been better to have specified the rates as well as the loadings.
Conclusion and Determination
For the first time in an agreement between these parties the public holiday benefits are paid in addition to the annual salary. Therefore comparisons with historical provisions are of limited value.
The ordinary meaning of the words in clause 29.12 read in the context, in particular the words “the Award public holiday rates of pay”, specify both the public holiday loadings and the rates to which those loadings are applied. The percentage loadings in clause 21.5(b) of the Award (250% and 300%) apply to the Stevedoring Award rates of pay.
In the Agreement some benefits are payable in addition to the annual salary: higher duties, public holidays, meal allowance, shift extensions and overtime. All of these other additional benefits are calculated by reference to a specified rate – either the ordinary time rates of pay or the secondary rate of pay. Reading the phrase “the Award public holiday rates of pay” in clause 29.12 to be a reference to the Stevedoring Award hourly rates is consistent with the methodology deployed for each of the other additional benefits under the Agreement.
DEPUTY PRESIDENT
Appearances:
Mr A Neal of Counsel instructed by Ms W Smith for the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)
Mr P Brown for the Respondent
Hearing details:
2022.
Sydney.
September 19.
Printed by authority of the Commonwealth Government Printer
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