CPSU, the Community and Public Sector Union v Sodexo Australia Pty Ltd T/A Sodexo Australia

[2020] FWC 1700

[2020] FWC 1700

FAIR WORK COMMISSION

COMMISSION OPINION

Fair Work Act 2009
s.739—Dispute resolution

CPSU, the Community and Public Sector Union
v
Sodexo Australia Pty Ltd T/A Sodexo Australia
(C2020/1043)

COMMISSIONER WILLIAMS PERTH, 30 MARCH 2020

S.739 - dispute resolution - C2020/1043 Re: SXO Custodial Enterprise Agreement 2016.

Background

[1] All employees of Sodexo Australia Pty Ltd T/A Sodexo Australia (the Respondent) employed at Melaleuca Remand and Reintegration Facility covered by the SXO Custodial Agreement 2016 (the Agreement) will have their employment terminated 4 April 2020, as a consequence of the contract between the Respondent and the State of Western Australia for the running the facility ending.

[2] Pursuant to Step 4 of clause 11, Dispute Resolution of the Agreement the CPSU, the Community and Public Sector Union (the Applicant) has provided the Respondent with written notice detailing the matter in dispute, which is that all fulltime employees covered by the Agreement should be paid any accrued, unused annual leave at the Annualised Wage rate upon their termination of employment as required by clause 34.7 of the Agreement.

[3] The Respondent's position is that under clause 34.8 of the Agreement the rate of pay for accrued but unused annual leave on termination is the employees’ base rate of pay plus leave loading.

[4] As provided for in Step 5 of clause 11, Dispute Resolution of the Agreement the Fair Work Commission (Commission), having received and considered written submissions on the dispute from both parties will now express an opinion on the dispute.

Consideration

Terms of the Agreement

[5] Relevant terms of the Agreement are set out below.

Annualised Wages

22.6 As an alternative to being paid a Base Rate of Pay in accordance with clause 22.1, the Company may elect to pay a Work Cycle Employee (as defined by clause Part 5 -29.8) an Annualised Wage. An Annualised Wage must be an amount not less than the total of all the amounts otherwise payable to the Employee under this Agreement during a 12 month period for working a particular Work Cycle Roster (as defined by clause Part 5 - 29.11) including weekend penalties, rostered overtime, public holiday penalties allowances and annual leave loading (Annualised Wage). However, the following are payable as separate amounts in accordance with the relevant provisions of this Agreement.

a) Meals allowance - clause 23.1, 23.2 and 23.3.

b) First aid allowance - clause 23.7.

c) Travelling, Transport and Fares - 23.8.

d) Dog Handlers Allowance - clause 23.9.

22.7 An Annualised Wage is comprised of an amount identified as payment for ordinary hours (for working an average of 38 ordinary hours in a week) or “Annualised Ordinary Hours” and an amount for the rostered overtime in the Work Cycle Roster or “Annualised Rostered Additional Hours”.

22.8 Work Cycle Rosters may be implemented at the discretion of the Company.

Work Cycle Employees

29.8 A Work Cycle Employee means an Employee who works a Work Cycle Roster consisting of consecutively reoccurring work days followed by consecutive non-working rest and recreation days (R & R days) or a combination of working and non-working days over a specified period.

29.9 All other Employees not categorised as a Work Cycle Employees will be given their ordinary meaning.

29.10 The total ordinary hours of work during a Work Cycle Roster will not exceed 38 hours multiplied by the number of working and non-working weeks in the specified period.

29.11 A Work Cycle Roster may include ordinary hours of work and additional rostered hours. The hours will be averaged evenly over each shift of the Work Cycle Roster.

29.12 A Work Cycle Employee will be required to work the hours specified in the Work Cycle Roster. The additional rostered hours are deemed to be reasonable having regard to the on-going operational requirements of the business, the nature of the working patterns and the prior notice of the requirement to work those rostered additional hours.

29.13 An Employee will not be entitled to any form of payment for the non-working R & R days.

Payment for annual leave

34.6 The NES prescribes the basis for payment for annual leave, including payment for untaken leave upon the termination of employment.

34.7 A Work Cycle Employee will continue to receive their Annualised Wage during any period of annual leave or for payment of untaken annual leave on termination.

34.8 Annual leave will be paid at the Employee's Base Rate of Pay for the Employees ordinary hours of work as provided for in the NES, plus an additional leave loading of 17.5%. To avoid doubt, an amount for leave loading is included in the Annualised Wage for a Work Cycle Employee.

Terms of the Contract

[6] Relevant terms of the Contract are set out below.

12.1 Your wages and frequency of payment is set out at Schedule A.

12.2 As an alternative to being paid a Base Rate of Pay, you may be paid a Full Rate of Pay.

12.3 The Full Rate of Pay may include:

(c) an Annualised Wage which must be an amount not less than the total of all the amounts otherwise payable to you-u under the Industrial Instrument during a 12 month period for working a particular Work Cycle Roster including weekend penalties, rostered overtime, public holiday, penalties, allowances and annual leave loading; and

(d) the Special Site Allowance.

which may be due to you under applicable Industrial Laws as specified.

Schedule A

Hours of Work / Roster Cycle

The average of 38 ordinary hours in a week, over

a period of not more than six (6) months, will be arranged to meet the ongoing operational requirements of the business.

Your roster will be prepared by Sodexo and will be posted in a conspicuous place and will be readily accessible to you. The roster will clearly show your shift commencement and finishing times.

At any time you may be rostered as a shift worker or a Work Cycle employee

Your working arrangements are subject to change, at any time, in accordance with your

Industrial Instrument and the operational requirements of the business.

Full Rate of Pay

$ 72,500.00 per annum

(The Full Rate of pay includes all rostered loadings, monetary allowances (including the

special site allowance), penalty rates, and other identifiable amounts.)

The Commission’s opinion

[7] Only if the employees, the subject of this dispute are Work Cycle Employees does clause 34.7 of the Agreement require they receive their Annualised Wage as payment for untaken annual leave on termination.

[8] The Agreement in summary provides that the Respondent may at its discretion implement Work Cycle Rosters.

[9] A Work Cycle Employee is an employee who works a Work Cycle Roster.

[10] A Work Cycle Roster includes a roster which amongst other things is a combination of working and non-working days over a specified period.

[11] A Work Cycle Roster may (or it may not) include ordinary hours of work and additional rostered hours.

[12] The Respondent, as an alternative to paying a Work Cycle Employee a Base Rate of Pay, may elect to pay them an Annualised Wage.

[13] This election only applies to Work Cycle Employees.

[14] The relevant terms of the contract, notably drawn up by the Respondent are self-evidently based on the terms of the Agreement.

[15] The contract in summary provides at 12.2 that employees may be paid a Full Rate of Pay as an alternative to be being paid a Base Rate of Pay.

[16] This is at the Respondents election.

[17] Schedule A of the contract shows the Respondent expressly elected to pay employees a Full Rate of Pay, $72,500.00 per annum for a Prison Custodial Officer Level 1 commencing March 2018.

[18] The contract says the Full Rate of Pay includes the Annualised Wage (defined in the same way as in the Agreement) plus the Special Site Allowance, both of which are prescribed in the Agreement.

[19] It is apparent from the contract that the employees are not being paid a Base Rate of Pay. Instead the Respondent elected to pay the employees a Full Rate of Pay which by definition in the contract includes payment of the Annualised Wage. Under the Agreement the Respondent can only elect to pay an Annualised Wage to employees who are Work Cycle Employees.

[20] Also, Schedule A to the contract says the employee may be rostered as a shift worker or a Work Cycle Employee.

[21] There is no provision in the Agreement for a shift worker, who is not a Work Cycle Employee, to be paid an Annualised Wage.

[22] In the Commissions opinion these employees are Work Cycle Employees under the Agreement and therefore should receive their Annualised Wage for payment of untaken annual leave on termination.

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