John McMurtry v The Star Entertainment Queensland Ltd T/A the Star Gold Coast

[2023] FWC 1825

[2023] FWC 1825

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

John McMurtry
v

The Star Entertainment Queensland Ltd T/A The Star Gold Coast

(C2023/634)

DEPUTY PRESIDENT LAKE BRISBANE, 25 JULY 2023

Application to deal with a dispute regarding additional days off – is the Applicant entitled to an additional day off – only if agreed by Respondent - dispute determined.

1. On 8 February 2023, Mr John McMurty (the Applicant) filed an application to deal with a dispute under s.739 with The Star Entertainment Queensland (the Respondent).

1. The Applicant is a Pay Electrician covered under The Star Gold Coast Enterprise Agreement 2022 (Agreement). Prior to the EBA, the Pay Electricians were not on the Agreement. The Applicant states that he believes that the Pay Electricians are entitled to an Additional Day Off (ADO) as the other pay trades had been getting an ADO who were already on the Agreement. The Applicant states that there was no consultation regarding not having ADOs.

1. The Applicant is seeking to work 40 hours a week, get paid for 38 hours and have an ADO such as the other team members in property operations. The Respondent asserts that the alternative roster arrangement has to be agreed to and is not an entitlement that can be unilaterally demanded.by the Applicant.

1. Following an unsuccessful conciliation conference, I made directions and listed the Dispute for arbitration. Both parties filed and served submissions in accordance with my directions. The parties agreed that I determine this matter on the papers.  

1. There is no dispute between the parties, and I am satisfied on the evidence, that I have jurisdiction to arbitrate the Dispute under clause 2.4 of the Agreement.

Question for determination

1. The Respondent and the Applicant have agreed to the following question to be answered.

Clause 6.3 of The Star Gold Coast Enterprise Agreement 2022 (EA) provides that an employee may work an alternative ordinary hours of work arrangement (160 hours per 4 weeks with an additional day off) to that set out in clause 6.1 (152 hours per 4 weeks).

Is an employee subject to the application of the EA entitled to elect an hours of work arrangement in accordance with clause 6.3, in circumstances where the employer opposes the arrangement?

Relevant provisions of the Agreement

1. The provisions of the Agreement are relevant to the Dispute are set out below.

Applicant’s Submissions

1. The Applicant contends three grounds for his view. Firstly, that the words ‘may’ – which he identifies 11 other examples in the Agreement indicate that he is able to select the alternative roster without needing to gain agreement from the Respondent. The second argument to support his application is that during the lead up to the Agreement vote that the Respondent had not provided the relevant information regarding the roster and the alternative roster, and that agreement would be required from the Respondent to change rosters was not made clear during the Agreement negotiations and prior to the vote. The third argument is that there are no operational impediments to his request and cites other workers and departments that the Respondents concerns regarding his request are not founded.

Respondent’s Submissions

1. The Respondent argues that the relevant clauses of the 2022 Agreement are straightforward and there is no ambiguity. The Clauses 6.1 and 6.3 are not confusing and is pellucid, the first clause establishes the method by which the Respondent a permanent team roster and 6.3 provides an alternative working arrangement that ‘may’ be worked. Thus they argue that there is no need to interpret as no ambiguity arises and no other evidence needs to be considered other than the plain meaning. No extrinsic or other evidence is required to resolve the dispute.

1. The Respondent contends that the clause 6.3 of the 2022 EA, is unambiguous as to its meaning when regard is had to the plain wording and the surrounding clauses and in particular clause 6.1 in that clause 6.1 establishes the way the permanent team member roster is to be established by the Respondent. Clause 6.3 provides an alternate method of rostering permanent team members by the Respondent within its operations other than under clause 6.1.

1. The Respondent submits that the resolution of the question turns on the meaning of the word “may” in clause 6.3 and that in context it both allows and permits the Respondent to roster employees (team members) consistent with the clause.

Consideration

1. Both parties agreed that the interpretation of the Agreement should be done through the Berri principles. The principles have been confirmed in James Cook University v Ridd (2020) 382 ALR 8 at [65]. These principles have been commonly accepted and will not be stated in depth. The key principles are that the enterprise agreement is to be read as a whole and in context using the ordinary meaning of the words used, the clause is to be read using a purposive approach rather than a narrow approach taking into account the industrial context and purpose and context is not limited to the word of the instrument if there is another document associated with the instrument.[1]

1. Commissioner Roe in Cordelle v Medibank Private Limited [2014] FWC 1194 referred to the relevant authorities including decisions of the High Court and stated in the meaning of the word ‘may’:

“I should not interpret the words in a strict technical fashion but I must have regard for the context of the Agreement as a whole. I should give effect to the mutual intention of the parties who made the Agreement provided that the words can be reasonably interpreted to mean what was intended.

I have regard to the fact that the High Court (in the judgment of Owen J in South Australian Cold Stores Ltd v Electricity Trust of South Australia 1) has held that, pending any exceptional circumstances that  m ight point to a contrary intention, the use of the word ‘may’ prima facie confers a discretion either to do, or not to do, a certain act.

In Finance Facilities Pty Ltd v Federal Commissioner of Taxation 2 the following was said:

While Parliament uses the English language, the word ‘may’ in a statute means may… it is a word of permission, of authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances, it enables the doing, or abstaining from doing, at discretion, of the thing so authorised.”

Similarly, in the joint judgment of Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ in Ward v Williams:

“... you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning. “The authorities clearly indicate that it lies on those who assert that the word “may” has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning” — Re Gleeson [1907] V.L.R. 368, at p. 373.”

1. The reading of clause 6.1 indicate that the Respondent set out the roster and one of the options which they may seek to roster staff is using an ADO. The employees do not have any discretion in deciding their roster unless there are operational requirements, mutual agreement, or 7-day consultation.

1. When reading clause 6.3 with the consideration of 6.1, it appears that the word “may” convey discretion to offer or not at the discretion of the Respondent, it does not provide a unilateral right to request and commence without gaining the agreement/approval from the other party unless it met the above requirements. Furthermore, there are no other words of modification in the text of the clause. In some Agreements, words such as ‘will not unreasonably refuse’ or similar are utilised to convey that a request is unlikely to be refused which there would be an expectation that the agreement would almost certainly be acceptable if not for a very particular circumstance.

1. The word ‘may’ is plainly used and should be plainly understood that whilst it may be an alternative that the agreement of the other party is to be gained before the alternative roster is worked, it is a possible alternative to the ordinary roster but not one that can be unilaterally declared.

1. In addressing the other two matters raised by the Applicant, the Applicant asserts that he should have been made aware that he was not able to participate in the alternative roster. The issue of consultation does not exist as the Applicant and others in his role had transitioned to the Agreement. The Applicant would need to be consulted if there was a change in his regular roster or ordinary hours of work post being a part of the Agreement.

1. The other matter raised by the Applicant regarding the capabilities of the Respondent to undertake ADO’s are at the discretion of the Respondent. The Applicant is able to be placed on ADO roster with the agreement of the Respondent. In this situation, the Respondent has not agreed, however this may change based upon the Respondent’s future operational requirements.

Conclusion

1. Accordingly, I find that the answer to the question posed for arbitration is:

Is an employee subject to the application of the EA entitled to elect an hours of work arrangement in accordance with clause 6.3, in circumstances where the employer opposes the arrangement? No

DEPUTY PRESIDENT

[1] James Cook University v Ridd (2020) 382 ALR 8 at [65]. I note there are other principles that are used in the interpretation of an enterprise agreement.

Printed by authority of the Commonwealth Government Printer

<PR764550>