Construction, Forestry, Maritime, Mining and Energy Union v Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited
[2023] FWC 2625
•10 OCTOBER 2023
| [2023] FWC 2625 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union
v
Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited
(C2023/2851)
| DEPUTY PRESIDENT EASTON | SYDNEY, 10 OCTOBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – rostered off period – whether an employee was entitled to be paid at overtime or provided Time Off In Lieu when attending Workplace Health and Safety Committee meetings on a Grey Rostered OFF Day – no entitlement to be paid at overtime or Time Off In Lieu.
Mr Lucas Pullen is employed by Sydney International Container Terminals Pty Ltd (SICTL). The Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 covers Mr Pullen’s employment. Mr Pullen is a member of the SICTL Workplace Health and Safety Committee. A dispute arose in relation to the rate of pay Mr Pullen must be paid when attending committee meetings days that he was not necessarily rostered to work.
The stevedore business of Hutchison Ports in Australia involves two separate but related corporate entities that employ persons at two separate sites. The Port Botany Site in Sydney operates through the employing entity Sydney International Container Terminals Pty Ltd. The Port of Brisbane facility operates through the employing entity Brisbane Container Terminals Pty Limited (BCT). SICTL and BCT are both parties to the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (Agreement), as is The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA).
The rostering convention under Agreement includes “Grey Rostered OFF Days” to denote days in the 8-week roster cycle where employees are rostered off but, under certain conditions, can be required to work a “payback shift.”
On 15 March 2023 Mr Pullen attended a Workplace Health and Safety Committee (WHS Committee) meeting on site. On Mr Pullen’s roster 15 March 2023 was Grey Rostered OFF Day. Mr Pullen was notified the day before that he was required to work “Day Shift, 0600 start. WHS meeting.”
Mr Pullen’s attendance on 15 March 2023 was treated for payroll purposes as a Payback Shift. Payback shifts do not attract overtime payments.
Clause 38.14 of the Agreement says:
“Employees attending [WHS Committee] meetings during rostered off periods will be paid at Overtime or provided Time in Lieu.”
The MUA argued that 38.14 applies and requires SICTL to pay overtime. SICTL argued that clause 38.14 is not engaged because the day was not a rostered off period and therefore that overtime rates do not apply.
The MUA’s formulation of the question to be determined was:
“When Mr Lucas Pullen attended a WHS meeting on 5 March 2023, was he entitled to be “paid at Overtime or provided Time in Lieu” pursuant to clause 38.14 of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021?”
SICTL’s formulation of the question to be determined was:
"In the circumstances of this Application, was Mr Lucas Pullen, pursuant to the terms of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 on 5 March 2023:
(a) “on a rostered day OFF”; and
(b) entitled to “time in lieu" or overtime with reference to his participation in the WHS meeting pursuant to subclause 38.14."
The differences in the two questions reflect the different ways the parties have tackled the same dispute.
The parties agreed that a hearing was not required. Three witnesses provided statements and each party filed written submissions.
Each of the filed statements contained conclusions and opinions from the witnesses and evidence of conduct by the parties after the Agreement was made. Applying standard interpretation principles from AMWU v Berri Pty Limited Berri [2017] FWCFB 3005 at [114], (2017) 268 IR 285 at 310, I have taken the opinions and conclusions asserted by each witness to be submissions from that witness’ camp, and I have not taken into account evidence or assertions of post-agreement conduct or usage.
MUA Evidence: Statement by Lucas Pullen
Mr Lucas Pullen said in his witness statement that he is a member of the WHS Committee, and that:
“On 15 March 2023 I was rostered off work. A WHS Committee meeting took place on that day. I attended the meeting…. Despite the clear language contained in clause 38.14, SICTL refused to pay me overtime or provide me time in lieu.”
Mr Pullen also said:
“I am unaware of any other instance of SICTL failing to credit a day in lieu to any WHS Committee member who attended a WHS Committee on a rostered day off.”
SICTL’s Evidence: Statement by Geoff Hughes
Mr Geoff Hughes is the Manager Terminal Operations for SICTL in Sydney. Mr Hughes provided a statement in relation to the arrangement of hours generally in Sydney, how Grey Rostered OFF Days are treated, and the events of 15 March 2023 involving Mr Pullen.
Mr Hughes explained that Mr Pullen was one of a number of employees in Sydney who had a Grey Rostered OFF Day on 15 March 2023. One other member of the WHS committee was on a Grey Rostered OFF Day. Mr Hughes said that each of the other employees on a Grey Rostered OFF Day attended work and were allocated roles such as lashing, quay crane and shuttle operation.
Mr Hughes said that Mr Pullen’s debit hours on 15 March 2023 were minus 68 hours. Accordingly, Mr Hughes said, “Mr Pullen was required to be available to work as he had Debit Hours and needed to pay debit hours back to SICTL.”
On 14 March 2023 Mr Pullen was sent an SMS in the following terms:
“Work orders for Wednesday 15.03.23 is Day Shift, 0600 start. WHS meeting.
Thanks.”
Mr Hughes said that in his view Mr Pullen was working his shift when he attended the WHS Committee meeting. The allocation sheet for 15 March 2023 recorded Mr Pullen is working from 6:00AM to 2:00PM and under the heading “remarks” Mr Pullen is listed as “WHS.”
Mr Hughes confirmed that as a result of working on Mr Pullen’s Grey Rostered Day OFF shift on 15 March 2023, Mr Pullen’s debit hours were reduced by 8.
Mr Hughes’ statement included the following additional opinions/submissions about Grey Rostered OFF Days:
(a)a Grey Rostered OFF Day differs from a day where a worker is “rostered off work” in that it is a “payback shift” which allows employees who have hours deficit can payback deficit hours; and
(b)clause 38.14 of the Agreement had no application to Mr Pullen’s circumstances on 15 March 2023 as it was not a rostered off period for Mr Pullen.
MUA Evidence: Statement by Nathan Donato
Mr Nathan Donato is the Assistant Sydney Branch Secretary of MUA. In response to Mr Hughes’ statement Mr Donato expressed the following views/submissions:
“Clause 38.14 is clear and unambiguous. When an employee comes in to work to attend a WHS Committee Meeting on a day that the employee is rostered off work, SICTL is required to pay the employee overtime or provide them time in lieu.
Grey days are a feature of Part B of the Agreement. Grey days are, in fact, a day when employees are rostered off work. When an employee has debit hours in excess of 23, however, SICTL is entitled to roster an employee to work on that grey day to perform stevedoring roles such as lashing, shuttle driving and forklift driving.
SICTL is not entitled to “roster” a WHS Committee member to attend a WHS meeting on a rostered day off and not pay the employee overtime or provide them with a day in lieu. Construing the Agreement in that way would lead to absurd results. For instance, an employee who had 22 debit hours would be entitled to overtime or time in lieu for attending the meeting on a rostered day off, while an employee who had 23 debit hours would get neither benefit.”
Submissions: MUA
The MUA submitted that the obligation under clause 38.14 of the Agreement is straightforward:
“Clause 38.14 of the Agreement is clear and unambiguous. When a WHS Committee member attends a WHS Committee meeting on his, her or their rostered day off, they are entitled to be paid at overtime or provided Time in Lieu.”
Submissions: SICTL
The Respondent submitted that matter was more complicated than the MUA describe. The Respondent does not accept that Mr Pullen was “rostered off work” that day.
The Respondent said:
“In being rostered on a Grey Rostered Off Day Mr Pullen was working off his Debit Hours (i.e. working on a Payback shift). In allocating Mr Pullen to attend the WHS Committee meeting on 15 March 2023, Mr Pullen was working his shift as allocated by SICTL.
…
Clause 38 of the 2021 EA deals with work health and safety. Subclauses 38.9 to 38.15 deal with "consultative mechanisms", including participation at WHS Committee meetings. Clause 38.14 of the 2021 EA had no application to his circumstances on 15 March 2023 as it was not a "rostered off period" for Mr Pullen…”
Key terms of the Agreement
Part B Schedule 5 contains the following shift definitions for SICTL Operations employees:
“2.1 Grey Rostered OFF Day are days that an Employee can be required to pay back any debit hours in excess of twenty three (23) ordinary hours. These days are identified as Grey squares with white OFF.
…
2.3 Debit Hours will occur when an Employee is rostered to work and the shift is cancelled by the Company or when an Employee elects to have a duty free period reduced from Credit Hours.
…
2.5 Payback Shifts are shifts worked by an Employee to reduce any Debit Hours owing to the Company.”
Part B Schedule 5 also contains the following ‘roster rules’:
“3.1 Employees will be required to work in accordance with their roster. Employees will be allocated to the indicative shifts on the roster where work is available on those shifts. When an Employee is rostered to work and no work is available the Employee will be debited with the cancelled shift at the equivalent ordinary time hours as outlined in Clause 5.1 of this Schedule. The Company will notify the Employee of the cancelled shift in accordance with normal allocation process detailed in Clause 26.
…
3.3 An Employee who has a credit bank of hours may apply at any time to have a duty free period from the roster to reduce these hours in line with the shift values outlined in Clause 5.1 of this Schedule. Time off will not be agreed unless the Employee has sufficient Credit hours to cover the requested time off at the time the request is made and the duty free period would not result in a labour shortage.
…
3.8 Credit and Debit hours will roll over each financial year.”
Overtime is defined in clause 27.3 of the Agreement:
“27.3 Overtime for the purposes of this Agreement shall mean:
27.3.1 Any time worked at the direction of the Company as an Extension of a shift (an Extension). This may occur prior to the allocated commencement or conclusion of the shift.
27.3.2 Thirty (30) minutes worked at the direction of the Company for the purposes of preparatory work prior to the commencement of a shift (a Pre-Start). Advice of Pre-Start will be given at the time of allocation.
27.3.3 Where an Employee works an additional shift on a rostered OFF Day (excluding Payback Shifts) in accordance with the rostering Schedules of this Agreement.”
I note that the exclusion of Payback Shifts in the definition provision of the overtime clause means that none of the operative provisions of clause 27 apply to Payback Shifts.
Clause 27.8 also is clear that overtime is payable on rostered OFF shifts but not on Grey Rostered OFF shifts:
“27.8 For Permanent Full Time Employees, work performed on rostered OFF shifts, Shift Extensions for a rostered OFF shift and Shift Pre-Starts will be paid at the following multiples of the Secondary Rate (Clause 16.10) appropriate to the work being performed on the overtime shift:
…”
Clause 38 of the Agreement deals with workplace health and safety and includes the following provisions:
“38.9 The Parties agree to establish:
38.9.1 Workplace Health and Safety Committee (WHS Committee)
…
…
38.13 The WHS Committee shall meet monthly. Employees at both Terminals can elect up to five employees (4 Operations representatives and 1 Maintenance representative).
38.14 Employees attending meetings during rostered off periods will be paid at Overtime or provided Time in Lieu. Employees attending WHS Committee Meetings during Annual Leave will be provided Time Off in Lieu (accrued day).”
Clause 12.4 applies to attendance at monthly ERC meetings and is in virtually identical terms to clause 38.14:
“12.4 Employees attending meetings during rostered off periods will be paid at Overtime or provided Time Off in Lieu (accrued day). Employees attending ERC Meetings during Annual Leave will be provided Time Off in Lieu (accrued day).”
The phrase “rostered off periods” is not a defined term and only appears in clauses 38.14 and 12.4.
Consideration: the ordinary meaning of the terms of the Agreement
I make the following observations about the Agreement as it applies to SICTL operations employees:
(a)SICTL employees work in accordance with the arrangements detailed in the rostering schedules in Part B of the Agreement (clause 26.2) and are allocated to the indicative shifts on the roster “where work is available on those shifts” (Schedule 5, clause 3.1);
(b)SICTL must notify employees via SMS or other electronic device when each employee is next required for work – being no later than 14:00 or 15:00 the day before each shift (clauses 26.4 to 26.6);
(c)when an Employee is rostered to work and no work is available the Employee will be debited with the cancelled shift at the equivalent ordinary time hours (Schedule B, clause 3.1);
(d)the standard rosters specified in Part B: Schedule 5 of the Agreement contain either five or six Grey Rostered OFF Days per 8-week cycle (Schedule 5: clauses 1.2 and 1.4);
(e)once an employee’s debit balance reaches the threshold of minus 23 hours, they must attend for work when required on Grey Rostered OFF days (Schedule 5, clause 3.2); and
(f)if an employee is called in to work on a Grey Rostered OFF Day they perform a “payback shift” (Schedule 5, clause 2.5) and are not eligible to receive overtime (clause 27.3 and 27.8).
Putting aside the fact that a WHS Committee meeting was scheduled for 15 March 2023, SICTL was entitled to call Mr Pullen in to work that day. If he had been called in to perform normal duties he would not have received overtime (or time in lieu) because his shift would have been a payback shift. One important aspect of clause 2.5 of Schedule B is that SICTL could have required/compelled Mr Pullen to work a Payback Shift.
If the MUA is correct that clause 38.14 required Mr Pullen’s attendance at the WHS Committee to be overtime, then clause 38.14 and clause 27 are contradictory. According to the MUA clause 38.14 requires attendance at work on a Grey Rostered OFF Day (to attend a WHS Committee meeting) to be paid as overtime, but clause 27 excludes Payback Shifts from overtime rates.
This contradiction is worsened by the fact that there is no generic or default overtime rate(s) in clause 27. Clause 27.1 mandates that “Overtime will be worked and paid in accordance with this Clause.” Clauses 27.7 and 27.8 are the only two sub-clauses that set overtime rates for SICTL operations employees, and each of these sub-clauses set specific overtime rates for specific circumstances. Neither clause 27.7 nor clause 27.8 contain overtime rates for attendance on a Grey Rostered OFF Day.
It is implicit in the MUA’s argument that the term “rostered off period” in clause 38.14 means either a Grey Rostered OFF Day or a Rostered OFF Day. The term “Rostered OFF Day” is used in Schedule 5 but is not defined. The term Rostered OFF Day is also used in the overtime clause and work on a Rostered OFF Day attracts overtime payments.
It is also implicit in the MUA’s argument that if 38.14 applies (and that overtime must be paid) then for the purposes of clause 27, work on a Grey Rostered OFF Day should be treated as if it was work on a Rostered OFF Day (in order to overcome the exclusion of Payback Shifts from the definition of overtime).
However there is no textual basis within either clause 38 or 27, or anywhere else in the Agreement, to find that work on a Grey Rostered OFF Day should be treated as work on a Rostered OFF Day.
In my view the root of the problem is that the authors of the Agreement did not pay close enough attention to the terminology used in clause 38.14 (or clause 12.4). Where the Agreement refers in other places to Grey Rostered OFF Days, as well as Rostered OFF Days and even Rostered Off Week, the expression “rostered off periods” in clause 38.14 does not bring clarity.
The interpretation of clause 38.14 that is most harmonious and consistent with the rest of the Agreement is to read the expression “rostered off periods” as being limited to Rostered OFF Days (as that term is applied in the overtime provisions of clause 27) and also Rostered Off Week (understood to be a series of Rostered OFF Days).
Applied this way, if an employee attends a WHS Committee meeting on a payback shift, the shift is treated in the same way as any other payback shift. If the employee attends the meeting on a Rostered OFF Day or during a Rostered Off Week, then clause 38.14 is engaged and the specific overtime rates in clause 27.8 apply. No inconsistency arises between clause 38 and 27.
Mr Pullen received a benefit from attending the WHS Committee meeting – his debit hours were reduced by 8. Compared to working a normal Payback Shift, which SICTL could have directed him to do, Mr Pullen did not lose out in any way by attending the WHS Committee meeting.
In answer to the MUA’s articulated question:
Q: When Mr Lucas Pullen attended a WHS meeting on 15 March 2023, was he entitled to be “paid at Overtime or provided Time in Lieu” pursuant to clause 38.14 of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021?
A: No
In answer to SICTL’s articulated question:
Q:In the circumstances of this Application, was Mr Lucas Pullen, pursuant to the terms of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 on 5 March 2023:
(a) “on a rostered day OFF”; and
(b) entitled to “time in lieu" or overtime with reference to his participation in the WHS meeting pursuant to subclause 38.14."
A: No and no.
DEPUTY PRESIDENT
Hearing details:
Determined on the papers.
Printed by authority of the Commonwealth Government Printer
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