Craig Williams v WA Freightlines Pty Ltd

[2011] FWA 8842

[2011] FWA 8842

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Craig Williams
v
WA Freightlines Pty Ltd
(C2011/3565)

COMMISSIONER WILLIAMS PERTH, 19 DECEMBER 2011

Application to deal with a dispute.

[1] This matter involves an application by Mr Craig Williams made under section 739 of the Fair Work Act 2009 (the Act). The Respondent is WA Freightlines Pty Ltd.

[2] The matter involves a dispute that has been referred to Fair Work Australia pursuant to the Dispute Settlement Procedure of the WA Freight Group Line Haul Division Enterprise Agreement 2010 [AE882969] (the Agreement).

[3] Clause 22 Dispute Settlement Procedure of the Agreement provides that any dispute between an employee covered by the Agreement and the Respondent about any matter arising under this Agreement, if not resolved by various layers of discussions, should be referred to Fair Work Australia for mediation or conciliation and “...if the matter remains unresolved, then the parties may agree to request that it be dealt with by arbitration.”.

[4] Both Mr Williams and the Respondent agree that Fair Work Australia has the power to determine this dispute between them by arbitration. I am satisfied that this application is properly made and arbitration by the Tribunal is consistent with the terms of section 739 of the Act.

The dispute

[5] Clause 8 Annual Leave of the Agreement provides that employees are entitled to annual leave in accordance with that clause and the National Employment Standard. The respective amounts of annual leave and to whom these apply is provided for in subclauses 8.2 and 8.3 as follows:

“8.2 For each year of completed service with the Company employees are entitled to:

a) 4 weeks of paid annual leave; or

b) 5 weeks of paid annual leave for a shiftworker.

8.3 For the purpose of this clause a shiftworker is an employee who is employed in an enterprise in which shifts are continuously rostered over 24 hours of a day for 7 days a week and the employee is regularly rostered to work on Sundays and public holidays.”

[6] The dispute raised by Mr Williams is whether he, and other employees of the Respondent working on the same basis, are shiftworkers as defined in subclauses 8.3 of the Agreement and so entitled to 5 weeks of paid annual leave rather than 4 weeks of paid annual leave for each year of completed service.

The position of both parties

[7] As directed the Respondent has provided to Mr Williams a set of rosters that detail the working arrangements for long haul drivers of the Respondent working under the Agreement.

[8] Whilst Mr Williams advises that there are some variations to these rosters from week to week for operational and practical reasons that are highly variable, the rosters are a reasonable assessment of what occurs on a weekly basis.

[9] Mr Williams argues that the employees do work continuously and the company's operations do work over 24 hours a day 7 days per week.

[10] He submits that the majority of shifts are rostered such that employees are required to work on Sundays and that employees are regularly rostered to work on public holidays. He concedes that the Respondent does try not to have people working on public holidays because of the extra cost of payments for public holidays.

[11] Mr Williams submits that the WA long haul drivers do not work on public holidays but are rostered to work every second Sunday.

[12] Mr Williams accepts that some of the rosters do not meet all of the criteria in subclause 8.3 but argues that the drivers themselves do meet those criteria because they regularly work on Sundays and public holidays.

[13] Mr Williams argues that the employees are shiftworkers and that because of the extra hours, stress and strain of the job that they deserve five weeks annual leave under the Agreement.

[14] The Respondent argues that there are two preconditions to be satisfied in the Agreement for an employee to be entitled to 5 weeks annual leave.

[15] The first is that the Respondent's shifts are continuously rostered over 24 hours a day 7 days of the week.

[16] The Respondent concedes that this is the case and they acknowledge that this precondition has been satisfied.

[17] The Respondent submits that the second precondition is that the particular employee in question, to be entitled to the 5 weeks of paid annual leave, is regularly rostered to work on Sundays and regularly rostered to work on public holidays.

[18] The Respondent submits that an analysis of the rosters shows that there are some drivers who are regularly rostered to work on Sundays and others who are regularly rostered to work on Mondays (recognising that Monday is the most common day of the week on which public holidays fall).

[19] The Respondent submits that neither of these two groups of employees meet the second precondition in subclause 8.3 and so are entitled only to 4 weeks of paid annual leave.

[20] However the Respondent submits that there is a third small group of drivers who do meet the second precondition in subclause 8.3 because they are regularly rostered to work on Sundays and are also regularly rostered to work on Mondays. It is only these employees that can be said to be regularly rostered to work on both Sundays and public holidays. These employees are therefore shiftworkers and under the terms of subclauses 8.2 and 8.3 are entitled to 5 weeks of paid annual leave for each year of completed service with the Respondent.

Consideration

[21] The wording of the annual leave clause which is central to the resolution of this dispute is unambiguous.

[22] An employee who is a shiftworker is entitled to 5 weeks of paid annual leave.

[23] An employee of the Respondent is a shiftworker if shifts are continuously rostered over 24 hours a day 7 days a week and that employee is rostered to work on Sundays and

public holidays (underlining added).

[24] Both Mr Williams and the Respondent agree that the Respondent is an enterprise where shifts are continuously rostered over 24 hours a day 7 days a week.

[25] The only issue between the parties is whether he and other employees are “... regularly rostered to work on Sundays and public holidays” (underlining added).

[26] Based on the updated rosters provided by the Respondent to the Applicant and the Tribunal with their submissions on 4 November 2011 I agree with the Respondent and find that employees working the West Australian roster are not shiftworkers and are not entitled to 5 weeks annual leave. These employees are not regularly rostered to work Sundays and public holidays.

[27] Employees working the following rosters are shift workers and are entitled to 5 weeks annual leave:

• Queensland rosters numbers 1, 4 and 5.



• Victorian rosters numbers 11 to 14 inclusive.



• New South Wales rosters numbers 21 to 25 inclusive.

[28] I note that from time to time the Respondent's rosters may change. Accordingly the above finding is limited to the facts based on the rosters provided by the Respondent that were operative as of 4 November 2011.

[29] If there are changes to the rosters in future the parties will need to separately consider whether new rosters do regularly roster employees to work on Saturdays and on public holidays. If this is the case these employees will be shiftworkers and entitled to 5 weeks of paid annual leave for each year of completed service assuming that the Respondent's operation continues to have shifts continuously rostered over 24 hours a day 7 days a week.

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