Joshua Neave v Broadspectrum (Australia) Pty Ltd
[2016] FWC 7561
•24 OCTOBER 2016
| [2016] FWC 7561 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Malcolm Appo; Adam Amos; Paul Crawford; Joshua Neave
v
Broadspectrum (Australia) Pty Ltd
(C2016/1255)
DEPUTY PRESIDENT LAWRENCE | SYDNEY, 24 OCTOBER 2016 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] On 31 May 2016 Malcolm Appo, Adam Amos, Paul Crawford and Joshua Neave (the Applicants) lodged an application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute settlement procedure in an agreement pursuant to s.739 of the Fair Work Act 2009 (the Act).
[2] The application was lodged on behalf of the Applicants’ by their union, the Construction, Forestry, Mining and Energy Union (CFMEU). The responsible officer of the Mining and Energy Division is Mr Keenan Endacott.
[3] The respondent employer is Broadspectrum (Australia) Pty Ltd, which was formerly known as Transfield Services, (Broadspectrum)
[4] The relevant agreement is the Transfield Services Limited (Maintenance Services – Wyee) Collective Agreement 2011 – 2015 [AE890467] (the Agreement).
[5] The coverage of the Agreement requires more detailed explanation but its incidence clause refers to “Maintenance and Miscellaneous Services work at Wyee Rail Unloader/Delta Link Conveyors, Rutleys Road, Wyee NSW”.
[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was the union covered by the Agreement.
[7] In broad terms, the dispute relates to the claim that shift workers should be paid double time for all overtime worked.
Commission Proceedings
[8] The matter was dealt with in conference on 16 June 2016 but could not be resolved.
[9] Directions were then issued and the matter set down for hearing on 17 August 2016.
[10] There was another CFMEU application with respect to the Agreement which related to the payment of annual leave. This matter (C2016/1256) was originally allocated to Commissioner Saunders. It was transferred to me and listed for 17 August. However, the CFMEU then lodged a notice of discontinuance.
[11] The Applicants were represented by Mr K. Endacott and Mr M. McGrath. Broadspectrum was represented by Mr S. Benson of counsel and Mr S. Patten its Employee Relations Manager. Mr Benson was granted permission to appear pursuant to s.596 of the Act.
[12] The CFMEU provided two written submissions and the witness statements from Adam Amos (1/7/16 and 3/8/16), Joshua Neave (8/7/16 and 5/8/16) and Malcolm Appo (5/7/16 and 4/8/16). Broadspectrum provided a written submission and the witness statement of Noel Wellham (29/7/16), one of its New South Wales construction managers.
Relevant Agreement Clauses
[13] Broadspectrum provides operation, maintenance and cleaning support for Centennial Coal on its Cooranbang, Myuna and Wyee sites. The Applicants have been employed by Broadspectrum since about July 2013 when it won the contract. They had been employed by the previous provider, Laing O’Rourke. Broadspectrum already had in place the Agreement. The application of the Agreement to the new contract was the subject of (a) dispute which was ultimately resolved by the Fair Work Commission.
[14] That issue is not relevant to this dispute because it is accepted by both parties that the Agreement applies. It is to be read in conjunction with the Manufacturing and Associated Industries and Occupations Award [MA000010] (clause 4) (the Award).
[15] The following appear to be the relevant clauses:
“11. AVOIDANCE OF DISPUTE PROCEDURE
11.1 It is a condition of this Enterprise Agreement and each employee's contract of employment, that continuous operations and workflow be maintained without bans, limitations or stoppages of work. This shall apply whether the issue, matter, dispute (hereinafter referred to as the grievance) relates directly to a National Employment Standard, Site employment, Term of this Agreement or Modern Award or any other matters but excluding genuine safety matters when the provisions of Clause 28 of this Agreement will be followed. The parties acknowledge that it is a fundamental requirement that this clause be observed in its entirety. Provided any employee pursuing any grievance under this Agreement can at their election have union representation at any stage of the procedure.
11.2 Notification to Fair Work Australia
After the above steps have concluded and if the grievance is not resolved to the satisfaction of the person raising the grievance, any party may apply to Fair Work Australia seeking resolution of the grievance via conciliation as a first step, or thereafter Arbitration. Any arbitrated matter must be fully in accordance with the provisions of the Fair Work Act 2009 and the rules of Fair Work Australia.
15. HOURS OF WORK
. . .
15.2 The ordinary hours of work prescribed herein may be worked on any day or all days of the week Monday to Friday.
15.3 The ordinary hours of work prescribed herein shall be worked continuously, except for unpaid meal breaks between 6.00 am and 6.00 pm. Starting & finishing times will be at the discretion of the Company.
15.4 Day Work Rostered Hours:
15.4.1 In the circumstances where a roster arrangement is introduced, the ordinary daily working hours will not exceed twelve (12), worked on any day of the week, Monday to Sunday. Provided for the purposes of averaging the 38 ordinary hours over the roster period can be greater than 4 weeks.
15.4.2 Employees working a 12-hour roster arrangement will be entitled after each 4 hours of work to a paid 20 minute crib break, provided work continues after the crib break is taken. Meal breaks may be staggered but in no circumstance will an employee be required to work more than 5 hours without taking a crib break
15.4.3 Any payment for rostered hours worked on a Saturday, Sunday or Public Holiday will be as per sub-clause 16.5 of this Agreement.
15.4.4 In circumstances where employees are working a roster arrangement as per the terms of 15.4 of this Clause, then any overtime worked by the employee will be as per subclause 16.7 of this Agreement.
16. SHIFT WORK
16.1 Definitions: For the purposes of this clause:
Afternoon Shift means any shift finishing after 6.00 PM and at or before midnight.
Continuous Work means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the Company
Night Shift means a shift any shift finishing subsequent to midnight and at or before 8.00 a.m.
Rostered Shift means a shift of which the employee concerned has had at least 48 hours notice.
16.2 Hours - Continuous Shift Work (CSW)
16.2.1 Subject to the terms of this clause, the ordinary hours of CSW shall be an average of 38 per week worked over any consecutive four (4) week period. Provided where a shift roster is introduced the relevant roster cycle can be greater than 4 week period, provided the hours of work will average 38 over the roster cycle.
16.2.2 The ordinary hours of CSW prescribed herein may be worked on any day or all of the days of the week Monday to Sunday.
16.2.3 The ordinary hours of CSW prescribed herein shall be worked continuously except for meal breaks between 6.00 pm and 6.00 am. Starting & finishing times will be at the discretion of the Company
16.2.4 An employee shall not be required to work more than one ordinary shift in each 24 hours
. . .
16.7 Overtime
16.7.1 Subject to the provision of 16.7.2 hereof, continuous shift workers for all time worked in excess of or outside the ordinary working hours prescribed by this Agreement or on a shift other than a rostered shift, shall be paid to a maximum double ordinary time rates i.e. not cumulative on shift loadings or shift allowances, & double and one half ordinary time rates for Public Holidays, for overtime hours or part thereof actually worked.
16.7.2 Except in each case when the time is worked:
a) By arrangement between the employees; or
b) For the purpose of effecting the customary rotation of shifts.
. . .
19. OVERTIME
19.1 Payment for Working Overtime
19.1.1 For all work performed outside ordinary hours the rates of pay shall be time and a half for the first two hours and double ordinary time rates thereafter, such double time to continue until the completion of the overtime work. Provided that overtime work performed under Clause 19.4 shall be paid at double time. Provided for overtime hours worked for Continuous Shift Workers (CSW) will be at double ordinary time rates
. . .
19.1.3 For the purposes of this clause ordinary hours shall mean the hours worked in accordance with clause 15 or 16 of this Agreement.
19.5 Saturday, Sunday, Public Holiday Work
A day worker required to work overtime on a Saturday, Sunday, Public Holiday shall be afforded at least 4 hours work or paid for 4 hours at the appropriate rate except where such overtime is continuous with overtime commenced on the day previous
19.5.1 Saturday Overtime
Other than for continuous shift workers, overtime worked on Saturday shall be paid for at the rate of time and one half ordinary time rates for the first two hours and double time thereafter. Provided that all overtime after 12 noon Saturday is paid for at double ordinary time rate.”
The Applicant’s Case
[16] Each of the Applicants performs duties of an “Operator Maintainer” at the Cooranbong Coal Handling and Preparation Plant (CHPP). It is a 24 hour per day, 7 day per week roster comprising two 12 hour shifts per day, Monday to Thursday and then Friday to Sunday. It is submitted that this roster comes under the ordinary idea of shift work. This is consistent with definition of “continuous work” in clause 16.1 of the Agreement.
[17] It is submitted that all employees working the continuous work shift roster system should be paid overtime at double time. The Applicants’ have in fact been paid overtime at the rate of time and a half for the first two hours and double time thereafter. This is the provision that relates to day workers. The Applicants’ have therefore not been paid in accordance with the Agreement.
[18] It is conceded that the Applicants work fixed shifts within the 24 hour roster cycle but the Agreement deals with 12 hour shifts in Clause 15.4. It specifically refers, with respect to overtime, to Clause 16.7 which provides for all overtime for shift workers to be paid at double time. Clause 19 also makes it clear that all overtime for continuous shift workers is at overtime rates.
[19] Adam Amos’s statement attaches his letter of appointment which describes him as a “full-time shift worker” with hours of 6.00 am to 6.00 pm Monday to Thursday paid as 4 x 9.5 ordinary hours plus shift allowance plus overtime. He also notes that the contract that Broadspectrum has for Cooranbong specifies a 7 day / 24 hour operation. His statement sets out the detailed operation of the roster and allocation of staff on it. He calculates the total number of hours that he has been underpaid since August 2013 as 542.34 hours.
[20] Mr Neave and Mr Appo’s evidence is consistent with the above picture. They also say that when they worked for the predecessor contractor Laing O’Rourke they were paid overtime at double time. Mr Crawford was overseas at the time of the hearing but information about his working hours etc. is in Mr Neave’s statement. Mr Crawford and Mr Appo were employed as part-time shift workers but this does not impact upon the issue to be decided.
[21] None of the Applicants were required for cross examination.
Broadspectrum’s Case
[22] Broadspectrum provided the following summary of the Applicants’ hours:
● Mr Neave | Monday to Thursday 6.00 am to 6.00 pm |
● Mr Amos | Monday to Thursday 5.00 pm to 5.00 am |
● Mr Appo | Friday to Sunday 5.00 am to 5.00 pm |
● Mr Crawford | Friday to Sunday 5.00 pm to 5.00 am |
This is consistent with the Applicants’ summary but Broadspectrum emphasizes that the shifts do not rotate across the 24 hours / 7 days.
[23] Without listing all the instances of overtime, Broadspectrum concedes that it pays overtime at time and a half for the first two hours, then double time. This is because they are not continuous shift workers and Clause 16.7 does not apply to them.
[24] In essence, Broadspectrum’s submission is that an employee must rotate through a 24 hour / 7 day roster to be regarded as a continuous shift worker.
[25] Noel Wellham gave evidence about Broadspectrum’s tendering for the contract in respect of Cooranbong, Myuna and Wyee sites and the transfer of employees from Laing O’Rourke. Eight employees of Laing O’Rourke accepted employment with Broadspectrum on the basis of the Agreement.
[26] Finally, Broadspectrum submits that Mr Neave and Mr Appo who work the day shift component of the roster are not shift workers at all but rather day workers.
Jurisdiction of the Commission
[27] The Commission’s jurisdiction to arbitrate arises from a combination of the Dispute Settlement Clause 11 and ss.738, 739 and 595 of the Act. Clause 11 is drafted in broad terms consistent with that clause, the Commission has a broad power, pursuant to s.595 to settle the dispute by making orders it considers appropriate.
[28] Relevant sections provide:
“595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.
738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.
739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
[29] A number of cases have emphasized the importance of properly characterising the dispute. This is a dispute about whether the Agreement has been properly applied and employees have been correctly paid for the working of overtime. There is no doubt that the Commission has jurisdiction to arbitrate this dispute.
The Approach of the Commission to Interpretation of Agreements
[30] The 2014 Full Bench decision in Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) FWCFB 7447 (Golden Cockerel) sets out the Commission’s approach to the interpretation of agreements. I set out below the relevant passages which refer to the relevant authorities:
“General Approach
19. The general approach to the construction of instruments of the kind at issue here is set out in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 (Wanneroo):
‘The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998)80 IR 345 (Marshall J). ’ (Wanneroo)
20. To this we add the oft-quoted observations of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 (Kucks) that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but:
‘. . . the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’ (Kucks)
21. Although their Honours were each dealing with the proper interpretation of an award, the same principles are apt to apply to the interpretation of enterprise agreements. See: Swire Cold Storage Pty Ltd v TWU [2008] AIRCFB 397 at [29] and AMWU v Silcar Pty Ltd[2011] FWAFB 2555 at [11] For example, similar observations were made in Amcor Limited v CFMEU.(2005) 222 CLR 241 (Amcor):
‘Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.” (Amcor) at 253 per Gummow, Hayne and Heydon JJ.’
22. The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo:
‘It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeorgeA Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.” (2006) 153 IR 426 at 440.”’
Use of extrinsic material as an aide to interpretation
23. As is often the case in disputes that involve the construction of an enterprise agreement, parties will seek to place reliance of a variety of extrinsic material as an aide to interpreting the provisions of an agreement in issue. The use to which extrinsic material of the surrounding circumstances may be put to assist in the interpretation of an instrument is set out in the judgement of Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337(Codelfa). In Codelfa his Honour said:
‘The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.’ (Codelfa) at 352”
[31] The Full Bench then dealt in some detail with subsequent cases which took varying approaches to the determination of an ambiguity. It went on to conclude as follows:
“30. Regard may therefore be had to evidence of the surrounding circumstances before the existence of ambiguity in an agreement is identified as an aide to interpreting the agreement for the purposes of determining whether an ambiguity exists. If thereafter ambiguity is not identified extrinsic material cannot be used to contradict the language of the instrument. If ambiguity is identified the material may be used as contextual material to aide in the interpretation of the instrument. In this context we would make the observation that the law in relation to the interpretation of commercial contracts (Codelfa; Metcash and Stratton) has now aligned with the approach to the construction of awards and enterprise agreements as espoused by Burchett J in Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 and confirmed by French J, as he then was, in Wanneroo.
Application of the Acts Interpretation Act 1901 to enterprise agreements approved under the Act
31. Both at first instance and before us the Appellant maintained that the Agreement must be interpreted in accordance with the Acts Interpretation Act 1901 (AI Act). (AB268-AB271 and Transcript PN271-PN280) That proposition is made on the basis that an enterprise agreement is an agreement that is made by the Commission pursuant to a power conferred by the Act to make the agreement. (See Section 46 of the AI Act) To make good the proposition the Appellant at first instance relied on the following passage from the judgement of French J in Wanneroo:
‘The interpretation of legislative instruments is dealt with in the Legislative Instruments Act 2003 (Cth). Awards and agreements made under the Act are declared, by s 7(1) of the Legislative Instruments Act, not to be legislative instruments – see Item 18 in the table set out in s 7(1). This leaves such awards and agreements within s 46 of the Acts Interpretation Act 1901 (Cth) which provides, inter alia:
‘(1) If a provision confers on an authority the power to make an instrument that is neither a legislative instrument within the meaning of the Legislative Instruments Act 2003 nor a rule of court, then, unless the contrary intention appears:
(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and
(b) expressions used in any instrument so made have the same meaning as in the enabling legislation; and
(c) any instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the authority.’
An award is an instrument made by an authority, in this case the Australian Industrial Relations Commission, and so attracts the application of the Acts Interpretation Act for the purposes of its interpretation.” (2006) 153 IR 426 at 438 [52]
32. The decision in Wanneroo does not support the proposition contended by the Appellant. In Wanneroo Justice French was concerned with the construction of an award under the Workplace Relations Act 1996 (WR Act) and not an enterprise agreement made under the Act. Relevantly, the award in question was an instrument that was not a legislative instrument but was an instrument made by the Australian Industrial Relations Commission pursuant to a power under the WR Act to make the instrument. Consequently French J concluded that the award was “an instrument made by an authority, in this case the Australian Industrial Relations Commission, and so attracts the application of the Acts Interpretation Act (AI Act) for the purposes of its interpretation.”
[32] The Full Bench, having dealt with s.172 of the Act, which contains the requirement for an agreement to be made about permitted matters (pertaining to the relationship between the employer and the employer’s employees) summarised its conclusions as follows:
“Summary
41. From the foregoing, the following principles may be distilled:
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”
[33] I have applied the principles summarised above in this decision
Consideration
[34] There was no dispute about the facts in this case in respect of the rosters/hours worked or the contracts of employment entered into. The extent of the alleged underpayment is relatively significant although it was not given a monetary value by the parties. It would also have implications for other employees covered by the Agreement beyond the four Applicants.
[35] The dispute is whether the Applicants are properly characterised as continuous shift workers in accordance with the Agreement and therefore entitled to the payment of all overtime at double time. This primarily turns on an analysis of the terms of the Agreement conducted in accordance with the approach of the Commission set out above.
[36] My decision relates to the terms of this Agreement and does not depend on a view of the “traditional” treatment of shift work in awards. The Agreement is not the best drafted document I have ever seen but its meaning, when considered as a whole, is I think, clear.
[37] Clause 15.2 and 15.3 define the ordinary hours for day workers as 38 worked between 6.00 am and 6.00 pm Monday to Friday. Clause 15.4 sets out the arrangements where “a roster arrangement is introduced”. This is a 12 hour shift arrangement worked over seven days. The heading of this clause,“Day Work Rostered Hours”, appears to me to be a misnomer because the clause does not deal with this at all. I raised this point in the hearing and neither of the advocates disagreed.
[38] In any event, Clause 15.4.4 specifies that employees who are on the 12 hour roster arrangement will be paid overtime in accordance with Clause 16.7.
[39] Clause 16.7 provides for all overtime to be at double time for “continuous shift workers”. That must mean those workers who are working the twelve hour shift roster arrangement as described in Clause 15.4.
[40] Broadspectrum argued that Clause 16.7 simply provided a maximum limit on payment. I disagree. The clause provides the overtime entitlement for continuous shift workers and the maximum payment for them. This is consistent with Clause 19.1 which says that overtime shall be paid at double time for continuous shift workers. The question is: are the Applicants continuous shift workers?
[41] Clause 16.7 relates back to the 12 hour shift arrangement in Clause 15.4.4 and the concept of continuous shift work.
[42] The definition of “continuous work” in Clause 16.1 is consistent with the 12 hour shift arrangement in Clause 15.4.4. It refers to “consecutive shifts:” so that there is 24 hour coverage over at least six days. In other words, the 12 hour shift arrangement is continuous shift work.
[43] Clause 19.5.1 which deals with Saturday work reinforces the point that all overtime for continuous shift workers is paid at double time.
[44] I am satisfied that the four Applicants are continuous shift workers. Their 12 hour roster arrangement, which was introduced pursuant to Clause 15.4.1, is defined as continuous shift work in Clause 16. There is no requirement that the shift be rotating. The requirement is that work be carried out over 24 hours for at least six consecutive days.
[45] Broadspectrum argued that Mr Neave and Mr Appo were not shift workers at all but rather day workers because of their hours. I do not agree. They are part of the 12 hour shift roster arrangement which is, in turn, defined as continuous shift work. Because of their hours they do not receive a shift allowance. However, they do receive a twenty minute paid break as provided for in Clause 15.4.2 (see Transcript PN409 - 418, PN518 – 530).
[46] The underpinning Award has the following definition in Clause 36.3:
(a) Continuous shiftwork means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption except for breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer.”
[47] It also provides for non-continuous shift workers and the possibility of 12 hour shifts. All overtime for continuous shift workers is at double time (Clause 36.5(d) and Clause 40.1(a)). There is no mention that shifts must be rotating. Of course in the traditional system of eight hour shifts this was invariably the case. However, where a 12 hour shift arrangement is introduced, this will change. In this case, the Agreement adapts the concepts and definitions in the Award to a 12 hour shift system.
[48] I was referred to the decision of Dethridge CJ in the Metal Trades Case (1936) [36 CAR 534] and Moore J in Australian Liquor Hospitality & Miscellaneous Workers Union v Broadlex Cleaning Australia Pty Ltd [(1997) 78 IR 464]. The latter case makes it clear that shifts can be fixed or rotating depending on the definition in the award/agreement.
[49] I was also referred to the decision of Senior Deputy President O’Callaghan in United Voice v Transfield Services (Australia) Pty Ltd (2015) FWC 4177. However, it deals with a different agreement provision and a different issue. The Agreement had a similar definition of continuous work but it does not deal with a 12 hour shift arrangements. I therefore find that this decision is of little assistance.
Conclusion
[50] Accordingly, I am satisfied that the Applicants are continuous shift workers for the purposes of the Agreement. They are therefore entitled to be paid for all overtime at double time. Broadspectrum should adjust the payments to the Applicants to ensure that they receive double time for all overtime worked.
DEPUTY PRESIDENT
Appearances:
K. Endacott with M. McGrath for the Applicants;
S. Benson of counsel with S. Patten for the Respondent.
Hearing details:
2016
Sydney:
August 17
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