Li Yan Wang v Crown Melbourne Limited T/A Crown Melbourne

[2024] FWC 2207

[2024] FWC 2207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Li Yan Wang

v

Crown Melbourne Limited T/A Crown Melbourne

(C2024/3349)

DEPUTY PRESIDENT BELL MELBOURNE, 9 SEPTEMBER 2024

Alleged dispute about any matters arising under the enterprise agreement – whether eligible for part-time to full-time conversion – not eligible – whether contra proferentem rule applies

1. Ms Wang has made an application under s 739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute concerning the Crown Melbourne Limited Enterprise Agreement 2023 (Agreement).

1. The factual circumstances of the dispute are quite unusual, although essentially undisputed. Ms Wang is a part-time employee, employed as a Dealer within the Premium Tables division of the respondent, Crown Melbourne. Ms Wang wishes to be a full-time Dealer and she is on a waitlist to that effect, along with a number of other part-time employees who are also seeking to become full-time. Ms Wang has been on the waitlist for a number of years and, while she is moving closer to the top of it, is evidently frustrated with the slow pace (from her perspective) of progress through the waitlist. To accelerate her wait time, Ms Wang conceived of a plan to take advantage of cl 20.6 of the Agreement (which is titled “Conversion to Full-Time Employment”), that would, in effect, let her automatically be converted to a full-time position.

1. Clause 20.6 relevantly permits a part-time employee to request to convert to full-time employment where the employee is rostered for 152 “Minimum Rostered Hours” per cycle for any 9 cycles in the 13 full roster cycles immediately before the request. Clause 20.7 of the Agreement sets which hours can be included for the Minimum Rostered Hours. Crown Melbourne contends that Ms Wang does not meet the eligibility criteria in cl 20.7.

1. Clause 20.7.2 is expressed to include any period of paid leave towards the calculation of the minimum hours for conversion. However, the same clause excludes from those calculations hours that relate to “pick up shifts”. It is the apparent tension between these subclauses that is the critical issue for the resolution of the dispute.

1. After unsuccessful attempts by the parties to resolve the dispute between themselves and, subsequently, with the assistance of the Commission, the matter was listed for arbitration. The agreed question for arbitration was:

“In the case of C2024/3349 Li Yan Wang v Crown Melbourne Limited T/A Crown Melbourne, were the conditions for full-time conversion met by the applicant per subclauses 20.6 and 20.7 of the Crown Melbourne Limited Enterprise Agreement 2023?”

1. For the reasons that follow, Crown Melbourne’s position is correct and the answer to the question is “no”.

Factual background

1. The Agreement is a comprehensive enterprise agreement. It was approved on 6 March 2024 and, by operation of s 54 of the Act, commenced operation on 13 March 2024. While the critical events in question all occurred under the previous enterprise agreement, there is no disagreement (correctly in my view) that the terms of the Agreement are applicable to the resolution of the current dispute. The relevant terms of the Agreement permit regard to circumstances and events occurring prior to the Agreement commencing operation. The dispute clause under the Agreement has been complied with and the Commission has jurisdiction to deal with the dispute.

1. Clause 11 of the Agreement is titled “Contract of Employment” and provides that employees may be employed as a Full-Time, Part-Time, Temporary or Casual Employee.

1. Clause 20 of the Agreement is titled “Hours of Work”. Clause 20.1 specifies that normal hours for a Full-Time Employee will, relevantly, be an average of 38 hours per week which will be worked over a 152 hour four week roster period. Clause 20.3 applied to Part-Time Employees, and specified that such employees would be assigned into one of five bands. The bands distinguished the range of hours that would be worked. The band with the fewest hours was Part-time band 1A, which specified 32 – 64 hours over a four week roster period. The band with the highest hours was Part-time band 4, which specified 120 – 144 hours per four week roster cycle. Ms Wang was Part-time band 4.

1. The Agreement contains a number of beneficial provisions in favour of employees for progression through classifications or for conversion from one type of employment to another. One mechanism is a “waitlist” established by cl 20.4. Clause 20.4 established a waitlist for (among others) part-time employees wishing to move between the part-time “bands”, as well as a waitlist for part-time employees wishing to move to full-time employment. Among other selection criteria, a criterion for these waitlists is that preference would be given to employees whose application is received first in time: cl 20.5.

1. Clause 20.8 provides a more specific entitlement for part-time employees to increase the part-time “band” the employee is assigned to. For example, if an employee in band 1A (whose hours would be in the range 32 – 64) is in fact required to work a minimum of 80 hours per cycle, then that employee would be entitled to request a conversion to Part-Time band 2. Clause 20.9 deals with how minimum hours are calculated for cl 20.8.

1. Clauses 20.6 and 20.7 are in the following terms:

“20.6. Conversion to Full-Time Employment

Subject to the terms of this clause, a Part-Time Employee may request to convert

to full-time employment if:

(a) a Part-time Employee has at least 12 months’ continuous service in the

role that they occupy at the time of making a request for conversion;

and

(b) a Part-Time Employee is rostered the minimum hours per cycle

specified in the table below for any 9 cycles in the 13 full roster cycles

immediately before the request is made:

Band Post Successful Review	Minimum Rostered Hours per Cycle to Request Review
Full-Time	152 HOURS

20.7. Calculation of Rostered Hours per cycle

20.7.1 For the purposes of sub-clause 20.6, the Minimum Rostered Hours will be hours rostered by the Company in a four (4) week roster cycle plus additional hours accepted by the Employee at the request of the company.

20.7.2 For the purposes of sub-clause 20.7, the Employee’s rostered hours per cycle:

(i)          will not include hours that relate to pick up shifts that have been given away by an Employee;

(ii)        will include any period of paid leave approved by the Company during the relevant cycle(s);

(iii)       will be calculated per cycle, rather than an average over 9 roster cycles.”

1. Clause 21.2 is titled “Rostering” and deals with a number of matters relevant to that subject but are not necessary to set out here. Clause 21.2.3 is titled “Variation to rostered shifts”. It is also not necessary to set the clause out in full but, among other matters, it provides for variations to rostered shifts including “Early-Outs & Late-Ins”, “Shift Swaps”, roster changes by agreement between an employee and Crown Melbourne, “Personal Swaps”.

1. Of relevance, cl 21.2.3(v) deals with “Shift give-aways and pick-ups”, which is in the following terms:

“shift give-aways and pick-ups. Notwithstanding the above, rostering arrangements or an Employee’s rostered hours may be changed at any time by agreement between the Company and any two or more Employees where the Employees enter into a “shift giveaway” or “shift pick-up” arrangement. In these circumstances, the Employee who picks up a shift will be paid for the hours actually worked at their ordinary hourly rate of pay and no overtime or other penalties will be payable by the Company to the Employee/s. The Employee who gives-away a shift will be considered to be on unpaid leave for the duration of the shift. The application of these “shift give-away” and “shift pick-up” arrangements will be in accordance with the following principles: [omitted].”

1. Crown Melbourne evidently has a system of numbering its roster cycles. For example, roster cycle 360 was the 4-week roster period from 19 June 2023 to 16 July 2023. Roster cycle 361 was the 4-week roster period from 17 July 2023 to 13 August 2023, and so forth. For each 4-week roster cycle, two payslips were be issued to Ms Wang (i.e. one for each fortnight comprising that roster cycle).

1. Ms Wang’s regular part-time hours were approximately 130 hours per 4-week cycle, with some variation above and below this (but never as high as 152 hours). Based on those hours, there was a shortfall of about 22 hours per cycle relative to the 152 hour threshold in cl 20.6. Recognising this shortfall, Ms Wang’s plan was to accept “shift pick-ups” to accrue extra hours.

1. The unusual circumstances of this case were that Ms Wang did not intend, with some isolated exceptions, to actually work those shifts. Rather, her intention was to instead take paid annual leave for those shifts. Having converted the pick up shifts to paid annual leave, it was Ms Wang’s belief that those hours would count towards her Minimum Rostered Hours for the purposes of cll 20.6 and 20.7 of the Agreement.

1. At the commencement of 2023, Ms Wang had accrued a significant number of hours of annual leave. Her payslip for the fortnight beginning 19 June 2023 shows an accrued leave balance of 957 hours.

1. Effectively beginning in cycle 360 – i.e. the 4 week cycle beginning on 19 June 2023 - Ms Wang had commenced accepting “shift pick-ups” in accordance with cl 21.2.3(v). Ms Wang explained (and there did not appear to be any disagreement) that the mechanism for her doing so was via the Crown Melbourne ‘app’ or interface that employees are able to utilise for various rostering functions and leave. It appears that most of the shift pick-ups were “give-aways” from a colleague she knew, as the app facilitates a “give-away” shift being offered to a specific individual (i.e. Ms Wang in this case). Give-aways also appear to be capable of being offered to other employees at large and, via the app, other employees minded to pick-up such shifts can accept them.

1. Once a particular shift pick-up was accepted by Ms Wang, it was recorded against her name to be worked. At this point, she made a subsequent application for annual leave to cover that particular shift. Those annual leave requests were approved and Ms Wang was paid accordingly.

1. Ms Wang and Crown Melbourne each prepared a spreadsheet of Ms Wang’s hours for the nine roster cycles from cycle 360 to 368, inclusive.

1. Taking the final cycle (i.e. cycle 368) as an example, Crown Melbourne states that Ms Wang’s regular rostered hours (including annual leave taken on those regular hours) comprised 114 hours – a shortfall of 38 hours necessary to reach the qualifying threshold of 152 hours for the purposes of cl 20.6 in that cycle. Crown Melbourne’s spreadsheet also records (and it is not in dispute) that Ms Wang accepted five shift pick-ups in cycle 368, being for 5, 8 16, 18 and 19 February 2024. Those five pick up shifts constituted 40 hours, all of which was subsequently converted to and taken as paid annual leave during that roster cycle.

1. Ms Wang contends that the 40 hours of paid annual leave taken for the five shift pick-ups in cycle 368 count towards her Minimum Rostered Hours for clauses 20.6 and 20.7. If they do count, it is not in dispute that Ms Wang’s hours would be 154 for that cycle and, importantly for cl 20.6, would exceed the 152 hour threshold for that roster cycle. On Crown Melbourne’s position, Ms Wang’s Minimum Rostered Hours were only 114 hours, and therefore fell short of the 152 hour qualifying threshold for that cycle.

1. While there is some variation in the hours for cycles 360 – 367, exactly the same issue arises in each. That is, Ms Wang will only meet the 152 hour threshold for clause 20.6 if the hours for periods of annual leave (or, for cycle 362 only, paid personal leave) taken in lieu of working shift pick-ups Ms Wang accepted are included.

Consideration

1. There was no apparent disagreement as to the applicable principles for construing an enterprise agreement,[1] save as to the possible application of the contra proferentem rule as an aid of interpretation. Rather, the disagreement lay in the application of those principles to the enterprise agreement at hand.

1. Clause 20.7.2(i) refers to “pick up shifts”. That term is not defined in the Agreement, although it is not in dispute that, for the shifts in contention between the parties, they were “shift pick-ups” in accordance with clause 21.2.3(v). It is clear that, at the very least, the “pick up shifts” in clause 20.7.2 are those “Shift give-aways and pick-ups” in clause 21.2.3(v).

1. Ms Wang did not actually work the pick up shifts she accepted but instead took paid annual leave for them. In those circumstances, an anterior issue is whether that leave time were hours “that relate to” those pick up shifts.

1. There was dispute about the scope of the connective term “relate to” within cl 20.7.2(i). In her oral submissions, Ms Wang contended that the connective term is “extremely vague and just ambiguous and honestly doesn't really mean anything”. I do not accept that submission. The term “relate to” and its variants such as “in relation to” are frequently encountered in private law documents and statutes. While the context in an agreement where particular words appear will always be relevant, generally speaking, the term “relating to” is a term of “wide import and is not to be read down”.[2] I consider that principle is applicable to cl  20.7.2(i) of the Agreement.

1. Clause 20.7.2(i) operates to exclude certain “hours”. The hours excluded are those “in relation to” pick up shifts given away by an employee, not hours “for” such a shift. There is no requirement that the hours actually be worked. In circumstances where the clause is simply directed at “hours”, I consider that the clause necessarily captures unworked hours taken as a form of leave where there would have otherwise been a requirement to work. If the intention of the clause was to only exclude pick up shifts actually worked, the clause could have easily said so. The words “relate to” have work to do and, in the present case, they include the annual leave hours Ms Wang utilised on the days she had otherwise accepted for those same hours by pick up shifts.

1. Nonetheless, as Ms Wang correctly contends, those same hours are also a “period of paid leave approved by the Company during the relevant cycle(s)”: clause 20.7.2(ii).

1. On its face, there is an inconsistency between clauses 20.7.2(i)&(ii) in the context of hours in relation to pick up shifts that are taken as approved paid leave. For the purpose of calculating the Minimum Rostered Hours, the first subclause of clause 20.7.2 is exclusionary, and the second is inclusionary.

1. The inconsistency is resolved by recognising that cl 20.7.2(i) deals with a particularly specific subject matter – pick up shifts. There is no dispute that, if the pick up shifts accepted by Ms Wang were worked, they would be excluded by clause 20.7.2(i) from her Minimum Rostered Hours. It would be an unusual result if hours not worked could count towards the total yet those same hours, if actually worked, did not count. That would place a primacy on unworked hours over hours actually worked. The intent and operation of cl 20.7.2 does not produce such an outcome.

1. I also accept the contextual matters put forward by Crown Melbourne in its submissions. The conversion rights from part-time to full-time employment are structured around hours rostered by the company and additional hours requested by the company to be worked. Pick up shifts are a bespoke arrangement entered into voluntarily between any two employees and Crown Melbourne that sit outside that general structure. For part-time employees, hours worked on pick up shifts are specifically excluded from any overtime calculation. For the employee who “gave away” those hours, cl 21.2.3(v) provides that that employee is taken to be on unpaid leave.

1. The contra proferentem rule does not assist. It is a rule that can apply to the interpretation of contracts, albeit is one that only rarely is applied outside of specific classes of contracts such as contracts of insurance or guarantee. The rule does not apply to wills or other unilateral documents or terms of a contract prescribed by statute.[3]

1. An enterprise agreement is not a contract[4] and, for that reason alone, I have significant doubts that the rule applies to the interpretation of enterprise agreements. However, as the position was not fully argued before me, I express no concluded view and proceed on the basis that it is capable of application.

1. First, the rule only applies as an aid to interpretation of “last resort”,[5] only where ambiguity exists after the application of other principles of construction. For the reasons I have already given, the enterprise is capable of interpretation without the assistance of the contra proferentem rule. For that reason, there is no basis for it to have any application here.

1. Second, the rule requires identification of the “proferens”, which is itself a potentially unsettled question. The proferens is either the party who drafted the ambiguous clause or is relying on the ambiguous clause. In either case, it is clear that the rule does not apply to cl 20.7.2. Clause 20.7.2, together with cl 20.6, is on its face a clause for the benefit of employees, not the employer – they are clauses that provides a beneficial entitlement for conversation to full-time employment at the “request” of the employee.

1. Clause 20.7.2 is clearly a clause that is the product of a negotiation. Taking the clause as a whole, it is unrealistic to isolate clause 20.7.2(i) as subject to the contra proferentem rule against the employer’s interest while ignoring the effect of overwhelmingly beneficial parts of that clause for employees, including cl 20.7.2(ii) in the employees’ favour.

1. For the foregoing reasons, the answer to the question for arbitration is “no”. In the case of C2024/3349 Li Yan Wang v Crown Melbourne Limited T/A Crown Melbourne, the conditions for full-time conversion were not met by the applicant per subclauses 20.6 and 20.7 of the Crown Melbourne Limited Enterprise Agreement 2023.

1. The dispute is determined accordingly.

DEPUTY PRESIDENT

Appearances:

L. Wang on her own behalf
C. Power and A. Murchie of Holding Redlich for Crown Melbourne

Hearing details:

2024.
Melbourne:
August 29.

[1]     See, e.g., WorkPac Pty Ltd v Skene (2018) 264 FCR 536, 580 at [197] (Tracey, Bromberg and Rangiah JJ) and James Cook University v Ridd (2020) 278 FCR 566, 580 at [65] (Griffiths and S C Derrington JJ).

[2]     See, e.g., Kraft Foods Group Brands LLC v Bega Cheese Ltd [2018] FCA 549 at [82] (O’Callaghan J).

[3] Perry Herzfeld and Thomas Prince, Interpretation, (Law Book Co, 2^nd ed, 2020), [25.110].

[4] Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152 (Jessup, Tracey and Perram JJ) at [87] – [89].

[5] McCann v Switzerland Insurance Australia Limited & ors (2003) 203 CLR 579 at 602 (Kirby J).

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