Construction, Forestry, Mining and Energy Union v Adelaide Independent Glass Pty Ltd

[2016] FWC 2217

[2016] FWC 2217

RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
v
Adelaide Independent Glass Pty Ltd
(C2016/648)
COMMISSIONER PLATT	ADELAIDE, 7 APRIL 2016

Alleged dispute about any matters arising under the modern award and the NES; [s146].

[1]        The Construction, Forestry, Mining and Energy Union (CFMEU) has applied for the

Commission deal with a dispute under s.739 of the Fair Work Act 2009.

[2]        The dispute was the subject of a conference on 1 April 2016. The dispute concerns the

application of shift work provisions of the Joinery and Building Trades Award 2010 (Award) to

work performed by some employees at Adelaide Independent Glass Pty Ltd (AI Glass).

[3]        The parties sought the Commission to issue a recommendation on how the Award

applies to their factual circumstances using the Commission’s powers under clause 9.3 of the

Award.

[4]        The parties have advised as follows:

	AI Glass provides glazing services to the public and construction industry;
	prior to August 2015, the normal hours of work for glaziers employed by AI Glass

were 6.00am to 2.30pm, Monday to Friday;

	in August 2015, AI Glass sought to extend the hours that it could provide services to
clients and three employees agreed to commence an early afternoon shift,
commencing work at 12.15pm and ending work at 8.45pm, Monday to Friday.

[5]        In dispute in this matter is whether the meal break during an early afternoon shift is

regarded as time worked (and therefore paid) or not.

[6]         The Award does not contain a definition of shiftwork however, clause 28.3(a) provides

definitions of afternoon, night, early morning and early afternoon shifts.

[7]        An early afternoon shift “means a shift finishing after 7.30 pm and before 9.00 pm.”

[8]        Clause 28.3(b) details the hours of work for shift workers. The clause provides:

“(b) Hours of work

(i)         Subject to clause 31 - Alternative working arrangement, the ordinary

hours for a shiftworker are eight hours per day, inclusive of meal

breaks, Monday to Friday provided that:

 an ordinary night shift commencing before, and extending

beyond, midnight Friday is regarded as a Friday shift; and

 where shiftwork comprises three continuous and consecutive

shifts of eight hours each per day, a crib time of 20 minutes

duration must be allowed without deduction of pay in each

shift, such crib time being instead of any other rest period

or cessation of work prescribed elsewhere in this award.

(i)         An employee on shiftwork accrues 0.4 of one hour for each eight

hour shift worked to allow one complete shift to be taken off as a paid

shift for every cycle of 20 shifts. The 20th shift must be paid for at the

appropriate shift rate as prescribed by clause 28.3(d).”

[9]        Clause 28.3(b)(ii) determines how the 38 hour week is implemented. Unless an

alternative is agreed under Clause 28.3(b)(v), employees on shiftwork, work an 8 hour shift,

with 0.4 of an hour banked each day to allow for a day off (RDO), once in every 20 shifts.

[10]      This is consistent with clause 28.3(b)(i) which provides that unless an alternative is

agreed under Clause 31, the ordinary hours of work for a shift worker are 8 hours per day,

inclusive of meal breaks.

[11]      Whilst clause 28.3(b)(i) does not stipulate that the meal break is paid, the interaction

of the method of implementation of the 38 hour week in clause 28.3(b)(ii) means that the time

must be regarded as worked and thus paid. Otherwise the employees would not work

sufficient hours to allow the accrual of the RDO.

[12]      In terms of the crib breaks applicable, dot point 2 of clause 28.3(b)(i) does not apply,

as AI Glass employees do not work continuous and consecutive shifts throughout the 24 hours

of the day.

[13]      The length of the meal break is set by clause 29.1 at not less than 30 minutes.

[14]      The Award does not appear to confer the entitlement to crib breaks to workers other

than day workers (clause 29.2) and continuous shift workers (clause 29.3). Accordingly, the

early afternoon shift workers will not be entitled to a crib break unless continuous shift work

is performed.

[15]      I invite the parties to consider this recommendation, obtain their own advice and seek

to agree a mutually acceptable outcome that meets the requirements of the business and

applies the relevant provisions of the Award.

COMMISSIONER

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