CPSU, the Community and Public Sector Union v The Geo Group Australia Pty Ltd
[2012] FWA 6707
•8 AUGUST 2012
[2012] FWA 6707 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 26 Sch. 3—Transitional instrument
CPSU, the Community and Public Sector Union
v
The GEO Group Australia Pty Ltd
(AG2011/14029)
Commonwealth employment | |
VICE PRESIDENT LAWLER | MELBOURNE, 8 AUGUST 2012 |
Application for a determination varying a transitional instrument (pre-reform certified agreement) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the NES for a “determination” under item 26 of Part 5 to Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - item 23 ‘no detriment rule’ - whether pre-reform certified agreement detrimental to shiftworkers when compared to entitlement of employees to payment for public holidays under the NES - whether a shiftworker not rostered on a public holiday is entitled to payment for that public holiday under s.116 of the NES - no entitlement to payment under s.116 in respect of a day or part day that is a public holiday when the shiftworker is not rostered to work on that day.
[1] This is an application by CPSU, the Community and Public Sector Union (the CPSU) for a determination under item 26, Part 5, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). Item 26 provides:
“26 Resolving difficulties about application of this Division
(1) On application by a person covered by a transitional instrument, FWA may make a determination varying the transitional instrument:
(a) to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards; or
(b) to make the instrument operate effectively with the National Employment Standards.
(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.”
[2] The CPSU contends that there is uncertainty or difficulty relating to the interaction between the Fulham Correctional Officers’ Certified Agreement 2005 (Agreement), which is a pre-reform certified agreement that was varied and extended in 2009, and the entitlement to payment for public holidays in s.116 of the National Employment Standards (NES) in the Fair Work Act 2009 (FW Act). It places reliance on item 23 which provides:
“23 The no detriment rule
(1) To the extent that a term of a transitional instrument is detrimental to an employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the transitional instrument is of no effect.
Note 1: A term of a transitional instrument that provides an entitlement that is at least as beneficial to an employee as a corresponding entitlement of the employee under the National Employment Standards will continue to have effect.
Note 2: Division 3 (which contains other general provisions about how the FW Act applies in relation to transitional instruments) is also relevant to how the National Employment Standards apply in relation to employees to whom transitional instruments apply.
Note 3: References to the National Employment Standards include a reference to the extended parental leave provisions and the extended notice of termination provisions (see sections 746 and 761 of the FW Act).”
[3] The GEO Group Australia Pty Ltd (the Respondent) filed a detailed set of written submissions and the CPSU responded with a schedule that was marked as Exhibit 1 which indicated significant agreement with portions of the Respondent’s submissions and, of course, identified areas of disagreement. Specifically, the CPSU agrees that there is a threshold issue that the tribunal must determine namely, whether the NES provides what the CPSU claims in respect of public holidays for shift workers. That is, the essential issue in this case is whether correctional officers employed as shift workers at the Fulham Correctional Centre under the Agreement are, pursuant to the NES, entitled to payment for public holidays on which they are not rostered to work. The CPSU contends that they are and, accordingly, suffer a detriment under the Agreement attracting the operation of item 23.
[4] That issue turns on the proper construction of s.116 of the FW Actand is a legal question that does not turn on any issue of industrial merit behind a claim for greater total remuneration by reference to the way rosters interact with public holidays. The parties are agreed that if the Respondent’s construction of s.116 is correct then the application must fail.
[5] Section 116 of the FW Act provides:
“116 Payment for absence on public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day.
Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.”
[6] It is useful to also set out s.114 of the FW Act:
“114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.
(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
(4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
(b) the employee’s personal circumstances, including family responsibilities;
(c) whether the employee could reasonably expect that the employer might request work on the public holiday;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
(e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
(f) the amount of notice in advance of the public holiday given by the employer when making the request;
(g) in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;
(h) any other relevant matter.”
(underline emphasis added)
[7] In my view the arguments advanced by the Respondent on the proper construction of s.116 are compelling. Sections 114-116 apply to employees generally and do not distinguish between shift workers and other workers (see especially s.114(4)(e)). That is in contrast to the distinction explicitly drawn between shift workers and other workers in the NES provisions relating to annual leave (s.87). On its proper construction s.116 applies to shift workers and that this is clear from the factors specified in s.114.
[8] The expression “if ... an employee is absent from his or her employment on a day” is an expression that on its ordinary and natural meaning is not satisfied in respect of a day when an employee is not rostered to work. Section 116 is concerned with absences from work at a time when the employee would otherwise be obliged to perform their ordinary hours of work (whether as a day worker working regular ordinary hours or as a shiftworker working on a roster).
[9] This construction is confirmed by the note to s.116 and item 461 of the Explanatory Memorandum which states:
“461. An employee is not entitled to any payment for absence on a public holiday if they would not have ordinarily worked on that day.”
[10] So far as the correctional officers at Fulham are concerned, on the proper construction of the NES, they do not accrue an entitlement to payment for a public holiday that falls on a day on which they are not rostered to work. The disadvantages associated with shift work are compensated for by shift penalties (built into the annualised wage provided for in their enterprise agreement and ultimately derived from the award) and a greater entitlement to annual leave than employees who are not shift workers. It does not extend to payment for public holidays that fall on days on which they are not rostered to work.
[11] Having reached a conclusion that the Respondent’s construction of s.116 is the correct construction as a matter of the proper application of legal principle, the parties are agreed that the application must fail. The application is dismissed.
VICE PRESIDENT
Appearances:
W Townsend with B Walsh for the CPSU, the Community and Public Sector Union.
K Brotherson for the GEO Group Australia Pty Ltd.
Hearing details:
2012.
Melbourne:
February 1.
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