Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services

The Construction, Forestry, Maritime, Mining and Energy Union brought this action against Hay Point Services (HPS) in the Federal Circuit Court of Australia, seeking a declaration that HPS had contravened section 50 of the Fair Work Act 2009 (Cth). The union argued that HPS had required employees to work overtime hours in excess of what was considered reasonable under the terms of the Hay Point Services Enterprise Agreement 2013. The court was required to determine whether the overtime hours imposed by HPS were in breach of the agreement and, if so, whether this constituted a contravention of section 50 of the Act.

In determining the matter, the court considered the definition of “reasonable overtime” within clause 34.1 of the enterprise agreement. The union argued that the new work roster prescribed overtime substantially in excess of 104 hours per annum, which was not reasonable. Conversely, HPS submitted that the clause should be construed against a broader base of what was “reasonable”. The court found that the union's interpretation was correct, as the new work roster did impose overtime hours which were not reasonable. The court further held that the post-contractual conduct, as evidenced by the 2017 Enterprise Agreement, was irrelevant to the determination of the proper construction of the 2013 Enterprise Agreement.

The court declared that HPS contravened section 50 of the Fair Work Act by requiring employees to work 455 overtime hours per annum from 16 July 2016 until the Agreement ceased to operate on 5 June 2017, in contravention of clause 34.1 of the Agreement. The matter was listed for further case management to allow the filing of further submissions and material referable to penalty. The court also ordered that the name of the Applicant be amended to be “Construction, Forestry, Maritime, Mining and Energy Union”.