Julie Ann Warren v Southern Cross Care Qld Ltd

[2024] FWC 2710

[2024] FWC 2710

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s.739—Dispute resolution

Julie Ann Warren
v

Southern Cross Care Qld Ltd

(C2024/2773)

DEPUTY PRESIDENT LAKE BRISBANE, 30 SEPTEMBER 2024

Recommendation

1. On 2 May 2024, Mrs Julie Ann Warren (the Applicant) made an application to the Fair Work Commission (the Commission) seeking to resolve a dispute with Southern Cross Care Queensland Ltd (the Respondent) under s.739 of the Fair Work Act 2009 (the Act).

1. The dispute concerns the payment of hours worked under the Southern Cross Care (Qld) – Aged Care Enterprise Agreement 2021 (the Agreement). The parties initially attempted to resolve the dispute at the workplace level but were unsuccessful. Clause 9.5 of the Agreement allows the Commission to deal with the dispute initially through conciliation or making a recommendation, then progress the matter to arbitration:

“9.5     The Fair Work Commission may deal with the dispute in 2 stages:

(a)the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b)if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties

1. The matter was listed for conciliation on 29 May 2024 and the Applicant did not attend. The Applicant stated that she wished to press the matter. The Applicant continually sent emails to Chambers regarding how she wants a decision on her matter despite not coming up with how the enterprise agreement is to be interpreted besides “it not being fair”. The matter was subsequently listed for an in-person conciliation on 21 June 2024. The parties were given an opportunity to resolve the dispute but there was no resolution as the Applicant kept asking for a decision upon the conclusion of the conference.

1. Given that it would create a complex process in trying to get the Applicant to determine a question for recommendation, the Respondent was instructed to give a question for recommendation to resolve the dispute.

1. I have determined the question as follows:

Does the reference to “time worked” within cl 21.1 of the Southern Cross Care (Qld) – Aged Care Enterprise Agreement 2021 mean that the actual performance of duties more than 76 hours is required to trigger this clause for part-time shift workers?

Consideration

1. The principles that are to be applied in interpreting this Agreement are as follows.[1] In summary, the Agreement must be understood by reference to the ordinary meaning of the words,[2] read in light of its industrial context and purpose.[3] Context is not confined to the words of the instrument surrounding the expression to be construed,[4] and may include “ideas that gave rise to an expression in a document from which it has been taken”.[5]

1. The Applicant is a part-time shift worker, who works 75.5 hours in a fortnight and works a 5-hour overtime shift regularly in this fortnightly period. The Applicant took annual leave on the fortnight she took a 5-hour overtime shift and is disputing that she is entitled to payment of overtime worked.

1. Clause 21.1 provides the following:

   All time worked by an employee in excess of 76 hours per fortnight will be paid for at the rate of time and a half for the first two hours and double time thereafter, except that on Saturdays and Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.

   All time worked by an employee which exceeds 10 hours per day, will be paid at the rate of time and a half for the first two hours and double time thereafter, except on Sundays when overtime will be paid for at the rate of double time, and on public holidays at the rate of double time and a half.

   For a part-time employee who has commenced a shift, all time worked in excess of their rostered hours for that shift will be paid as overtime

1. The Employer does not dispute that paid leave is counted as ordinary hours and therefore every time Ms Warren is taking annual leave or paid sick leave, this is counted to the 75.5 hours. The paid leave is counted to the meaning “all time worked”.

1. However, if the Applicant does not work the 5 additional hours of overtime, she is not entitled to be paid for this shift nor is the Employer required to pay annual leave entitlements on this shift pattern.

1. This is because in the weeks that the Applicant did not work more than 76 hours, it will not trigger the overtime clause as the Applicant had only worked 75.5 hours that week.

1. If there is a shift where the Applicant may have to work additional hours on the completion of the rostered shift on that day, she may be entitled to overtime.

1. Overtime is subject to penalty rates that the Respondent is required to pay if the hours of work asked by the Respondent exceed the agreed working hours between the Applicant and Respondent.

1. Therefore, if the Applicant wishes to reject the shift in the future, she may do so given that these are additional hours asked by the Respondent. However, she is not entitled to any payment of the overtime shift if she does not work this shift as it is not counted as ordinary hours or “all time worked”.  If the Applicant’s annual leave deductions are being made on the shifts that she is not working, this should be rectified by the Respondent.

Conclusion

1. Therefore, my answer to the question for recommendation would be as follows:

Does the reference to “time worked” within cl 21.1 of the Southern Cross Care (Qld) – Aged Care Enterprise Agreement 2021 mean that the actual performance of duties more than 76 hours is required to trigger this clause for part-time shift workers?

Yes, Any time that Ms Warren takes leave during her regular rostered hours, this is counted towards the 75.5 hours of “time worked”, however if  Ms Warren does not work the 5 additional hours of overtime, she is not entitled to overtime or annual leave entitlements or payment for this shift.

1. The dispute should be resolved.

DEPUTY PRESIDENT

[1] James Cook University v Ridd [2020] FCAFC 123 at 65.

[2] City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197].

[3] Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2].

[4] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53].

[5] Short v FW Hercus Pty Ltd (1993) 40 FCR 511, 518.

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