Maritime Union of Australia, The v Patrick Stevedores Holdings Pty Ltd

[2014] FWC 1264

[2014] FWC 1264

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Maritime Union of Australia, The
v
Patrick Stevedores Holdings Pty Ltd
(C2013/15)

COMMISSIONER CLOGHAN PERTH, 6 MARCH 2014

Alleged dispute about any matters arising under the enterprise agreement.

[1] This is an application by the Maritime Union of Australia seeking that employees, when working a shift extension (overtime) in a job below their salary grade, be paid the overtime at their salary grade.

[2] Patrick Stevedores Holdings Pty Ltd opposes the Union’s interpretation of the enterprise agreement. The Employer asserts that in recent enterprise bargaining, in return for moving away from the compulsory nature of shift extensions, it was agreed that employees performing shift extensions, on a voluntary basis below their salary grade, would be paid the overtime at the grade of the position in which the overtime was worked.

PROCEDURAL BACKGROUND

[3] On 7 January 2013, the Maritime Union of Australia (Applicant or MUA) made application to the Fair Work Commission (Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP).

[4] The MUA is in dispute with Patrick Stevedores Holdings Pty Ltd (Employer).

[5] The DSP is contained in the Patrick Terminals Enterprise Agreement 2012 (2012 Agreement).

[6] The application was the subject of conciliation conferences on 14 February and 6 May 2013. The parties agreed to the questions for determination of the dispute on 5 August 2013. Procedural directions were issued on 8 August 2013 and the hearing took place on 4 October 2013.

[7] At the hearing on 4 October 2013, the MUA was represented by Mr L Edmonds, National Legal Officer and evidence was given on behalf of the Applicant by Mr A Evans, Deputy Secretary of the Western Australian Branch of the MUA.

[8] The Employer was represented by Mr D Perry of counsel and evidence given on behalf of the Employer by Mr M O’Leary, General Manager, Industrial Relations.

[9] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.

RELEVANT BACKGROUND

[10] The Employer provides stevedoring services at Port Botany (Sydney terminal), Fisherman Islands (Brisbane terminal), East Swanson Docks (Melbourne terminal) and the Port of Fremantle (Fremantle terminal) (collectively the terminals).

[11] The employees who perform the stevedoring work at the terminals are, or are eligible to be, members of the MUA.

[12] The employees affected by the dispute are employed pursuant to the 2012 Agreement.

[13] The 2012 Agreement commenced operation on 12 June 2013.

[14] The 2012 Agreement is divided into two parts. Part A contains general provisions which apply across all of the terminals nationally. Part B contains specific provisions relating to either the Sydney, Brisbane, Melbourne or Fremantle terminal. In effect, the 2012 Agreement is a combination of nationally consistent conditions, and also terms which give effect to the particular circumstances at each local terminal.

[15] Prior to the commencement of the 2012 Agreement, the employees affected by this dispute were covered by the Patrick Terminals Extended Certified Agreement 2008 (2008 Agreement).

[16] The 2008 Agreement was a “rollover” and renaming of the Patrick Certified Agreement (Terminals) 2004 (2004 Agreement).

[17] The 2012 and 2008 Agreements provide for what is called a “shift extension”. A shift extension is a period of overtime which commences at the end of a rostered shift and is generally carried out by the employee who has worked the position requiring the shift extension. Alternatively, where it is not possible for the shift extension to be carried out by the same employee who has completed the ordinary hours, another employee carries out the shift extension.

[18] The 2008 Agreement provided the Employer with the capacity to direct employees to carry out a shift extension. The 2012 Agreement introduced a term whereby shift extensions are, in the first instance, voluntary and as required, if there are insufficient volunteers to perform the shift extension.

RELEVANT ENTERPRISE AGREEMENT PROVISIONS REFERRED TO BY THE PARTIES

[19] 2008 Agreement

“18. ROSTERING AND REMUNERATION

...

18.5 The following ordinary time (“grade”) rates shall apply to work performed by PGE’s and supplementary employees engaged under this Agreement. These rates shall also be the basis for calculating overtime rates of pay for full time employees in accordance with clause 21 of this Agreement.

Grade	Up to Implemention Per week	From fppcooa Implemention Per week	From fppcooa 11 October 2008 Per week	From fppcooa 11 October 2009 Per week
2	$745.05	$782.30	$821.42	$862.49
3	$802.75	$842.89	$775.03	$929.28
4	$868.05	$911.45	$957.03	$1,004.88
5	$894.50	$939.23	$968.19	$1,035.50
6	$988.50	$1,037.93	$1,089.82	$1,144.31
Guarantee	$30,000 pa	$45,000 pa	$47,250 pa	$49,613 pa

18.6 These grade rates shall be applied to classifications / tasks in accordance with the award as follows:

General Hand - grade 2 (including bus driving at ESD)

Clerical GD (terminals) - grade 3

Heavy Fork (and First Aid/Bus at Port Botany) - grade 3

Clerical (terminals C6) - grade 4

Allocator - grade 4

Straddle - grade 3

Team Leader (non shift) - grade 6

Clerical (terminals C7) - grade 5

Leading Hand lasher - grade 5

Reefer - grade 4

Crane Operator - grade 4

Team Leader (shift) - grade 6

Senior Clerical - grade 6”

“21. OVERTIME AND MEAL ALLOWANCE

21.1 Payment for overtime and associated meal allowances shall be in accordance with the arrangements detailed in Schedule 9 of this Agreement.

21.2 Employees may be required for up to one-half hour preparatory and/or closing work on an “as required” basis and shall be paid overtime (extension) rates for the period involved based on the relevant grade rate of pay.”

“SCHEDULE 9 - OVERTIME RATES

FULL TIME EMPLOYEES

Night Shift (2300-0700)	Day Shift (0700-1500)	Evening Shift (1500-2300)	Meal Money
Full Time Employees working at Salary Grade or below	Monday to Friday
	Roster (first 8 hrs)	Salary	Salary	Salary	Nil
	Extension (hrs over 8)	> 8 hrs @ OT3.0 (salary grade)	> 8 hrs @ OT2.0 (salary grade)	> 8 hrs @ 2.5 (salary grade)	Yes, if more than 1 hr
	Saturday
	Roster (first 8 hrs)	Salary	Salary	Salary	Nil
	Extension (hrs over 8)	> 8 hrs @ OT3.0 (salary grade)	> 8 hrs @ OT3.0 (salary grade)	> 8 hrs @ 3.0 (salary grade)	Yes, if more than 1 hr
	Sunday
	Roster (first 8 hrs)	Salary	Salary	Salary	Nil
	Extension (hrs over 8)	> 8 hrs @ OT3.5 (salary grade)	> 8 hrs @ OT3.5 (salary grade)	> 8 hrs @ 3.5 (salary grade)	Yes, if more than 1 hr
	Full Time Employees working at higher than Salary Grade	Monday to Friday
		Roster (first 8 hrs)	Salary + Higher Duties	Salary+ Higher Duties	Salary + Higher Duties	Nil
Extension (hrs over 8)		> 8 hrs @ OT3.0 (grade wkd)	> 8 hrs @ OT2.0 (grade wkd)	> 8 hrs @ 2.5 (grade wkd)	Yes, if more than 1 hr
Saturday
Roster (first 8 hrs)		Salary + Higher Duties	Salary + Higher Duties	Salary + Higher Duties	Nil
Extension (hrs over 8)		> 8 hrs @ OT3.0 (grade wkd)	> 8 hrs @ OT3.0 (grade wkd)	> 8 hrs @ 3.0 (grade wkd)	Yes, if more than 1 hr
Sunday
Roster (first 8 hrs)		Salary + Higher Duties	Salary + Higher Duties	Salary + Higher Duties	Nil
Extension (hrs over 8)		> 8 hrs @ OT3.5 (grade wkd)	> 8 hrs @ OT3.5 (grade wkd)	> 8 hrs @ 3.5 (grade wkd)	Yes, if more than 1 hr
Full Fime Employees working Pure Overtime		Monday to Friday
		8 hour overtime shift	8 hrs @ OT2.0 (grade wkd)	8 hrs at OT2.0 (grade wkd)	8 Hrs @ OT2.0 (grade wkd)	Yes, if more than 5 hrs
	Extension (hrs over 8)	> 8 hrs @ OT2.0 (grade wkd)	> 8 hrs @ OT2.0 (grade wkd)	> 8 hrs @ OT2.0 (grade wkd)	Yes, if more than 1 hr
	Saturday
	8 hour overtime shift	8 hrs @ OT2.0 (grade wkd)	8 hrs @ OT2.0 (grade wkd)	8 hrs @ OT2.0 (grade wkd)	Yes, if more than 5 hrs
	Extension (hrs over 8)	> 8 hrs @ OT2.0 (grade wkd)	> 8 hrs @ OT2.0 (grade wkd)	> 8 hrs @ OT2.0 (grade wkd)	Yes, if more than 1 hr
	Sunday
	8 hour overtime shift	8 hrs @OT2.5 (grade wkd)	8 Hrs @ OT2.5 (grade wkd)	8 hrs @ OT2.5 (grade wkd)	Yes, i fmore than 5 hrs
	Extension (hrs over 8)	> 8 hrs @ OT2.5 (grade wkd)	> 8 hrs @ OT2.5 (grade wkd)	> 8 hrs @ OT2.5 (grade wkd)	Yes, if more than 1 hr

[20] 2012 Agreement

“18. ROSTERING AND REMUNERATION

18.5 The following ordinary time (“grade”) rates shall apply to work performed by PGE’s and supplementary employees engaged under this Agreement. These rates shall also be the basis for calculating overtime rates of pay for full time employees in accordance with clause 21 of this Agreement.

Grade	From Fppcooa 11th October 2010 (3%)	Fppcooa 11th October 2011 (4.2%)	Fppcooa 11th October 2012 (5%)	Fppcooa 11th October 2013 (5%)	Fppcooa 1st July 2014 (5%)
2	$888.36	$925.68	$971.96	$1020.56	$1071.59
3	$957.16	$997.36	$1047.23	$1099.59	$1154.57
4	$1035.03	$1078.50	$1132.42	$1189.05	$1248.50
5	$1066.57	$1111.36	$1166.93	$1225.28	$1286.53
6	$1178.64	$1228.14	$1289.55	$1354.03	$1421.73
Guarantee	$52000	$54184	$56893	$59737	$61724

18.6 These grade rates shall be applied to classifications / tasks in accordance with the award as follows:

These rates will also apply to Permanent employees working overtime,

General Hand - grade 2 (including bus driving at ESD)

Heavy Fork (and First Aid/Bus at Port Botany) - grade 3

Clerical (terminals C6) - grade 4

Allocator - grade 6

Straddle - grade 3

Team Leader (non shift) - grade 6

Clerical (terminals C7) - grade 5

Leading Hand lasher - grade 5

Reefer - grade 4

Crane Operator - grade 4

Team Leader (shift) - grade 6

Senior Clerical - grade 6”

“21. OVERTIME AND MEAL ALLOWANCE

21.1 Payment for overtime and associated meal allowances shall be in accordance with the arrangements detailed in Schedule 7 of this Agreement.”

“SCHEDULE 7 - OVERTIME RATE”

[21] Schedule 7 is identical to Schedule 9 in the 2008 Agreement and is not reproduced again.

THE DISPUTE

[22] Up until October 2012, at the Employer’s Fremantle terminal, employees who were performing a shift extension at or below their salary grade were paid at their salary grade.

[23] On or about October 2012 (following the commencement of the 2012 Agreement), the Employer changed its payment practice to a situation where employees who worked a shift extension at or below their salary grade were paid in accordance with actual grade of the work performed.

[24] As a consequence of the Employer’s change in payment practice, the parties are in dispute as to the correct rate of pay for employees working shift extensions below their salary grade.

APPLICANT’S CASE

[25] The MUA submits that subclause 21.1 of the 2012 Agreement provides that overtime should be in accordance with Schedule 7.

[26] Schedule 7 provides that full-time employees working extensions at salary grade or below should be paid in accordance with their salary grade and not the grade of the position where shift extension is occurring.

[27] The MUA submits that there is no ambiguity relating to subclause 21.1 and Schedule 7 of the 2012 Agreement and they should be given their ordinary and natural meaning.

[28] In the event that the Commission finds that there is an ambiguity, the MUA submits that recourse to extrinsic material in terms of negotiations for the 2012 Agreement and the operation of previous agreements, is evidence of an intention of the parties to give effect to the plain and ordinary meaning of Schedule 7.

EMPLOYER’S CASE

[29] The Employer submits that, prior to the 2012 Agreement, shift extensions were usually performed by employees who worked the rostered shift that preceded the extension. Simply put, employees were directed to continue working beyond the end of their rostered shift in the job they were carrying out. Consequently, the salary for the purposes of the extension was the same as the grade of the job being performed and the salary grade of the employee.

[30] During negotiations for the 2012 Agreement, the MUA sought, and the Employer agreed, that shift extensions be performed on a voluntary basis in the first instance, and if there were insufficient volunteers, the Employer could direct employees to perform shift extensions.

[31] The Employer submits that it agreed to the MUA’s claim for voluntary shift extensions on the basis that it would not incur additional costs.

[32] To ensure that there was no cost increase to the Employer, the 2012 Agreement now contains the words in subclause 18.6:

“These rates will also apply to Permanent employees working overtime.”

[33] The Employer submits that the words in subclause 18.5 of the 2012 Agreement “these rates [for the relevant grade of position] shall also be the basis for calculating overtime rates for full-time employees” means that when shift extensions are worked in the relevant grade, it is the salary of the position that forms the basis for calculating the shift extension.

[34] Secondly, in case there is any uncertainty as to the meaning of the words “these rates shall also be the basis for calculating overtime rates for full-time employees” in subclause 18.5 of the 2012 Agreement, subclause 18.6 was varied in the 2012 Agreement by including the words:

“These rates [for the relevant job] will also apply to Permanent employees working overtime”

to make it abundantly clear that it applies to full-time employees working overtime.

[35] Accordingly, the Employer submits that the appropriate rate for a full-time employee working overtime, including shift extensions, are the rates of pay which attach to the grade of work being performed.

[36] In conclusion, the Employer submits that the Commission should apply the ordinary principles of construction to subclauses 18.5 and 18.6 of the 2012 Agreement which reflects both the history of compulsory shift extension and the specific amendment made in subclause 18.6 to reflect the intention of parties during negotiations for the 2012 Agreement.

CONSIDERATION

[37] This dispute concerns essentially the meaning and application of provisions contained in the 2012 Agreement relating to the working of shift extensions.

Interpretation of Enterprise Agreements

[38] Both the MUA and the Employer agreed that the following principles of interpretation summarised by Deputy President Ives in The Australian Workers’ Union v Visy Board Pty Ltd t/as Visy Specialties (PR963418) at paragraph [12] are appropriate.

“Among the general principles to be followed in the interpretation of awards and certified agreements are these:

(a) if the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning;

(b) the words used in an industrial instrument should not be interpreted in a strict, technical fashion, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise;

(c) each clause should be interpreted within its context, that is, the meaning of particular words should be read in the context of the industrial instrument as a whole and in the context of the clause/section in which it falls;

(d) the court or tribunal should strive to give effect to the intention of the authority which made the award (or, presumably, in the case of an agreement, the intent of the parties to the agreement), provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority/parties intended them to mean;

(e) the court or tribunal's recourse to extrinsic material in the interpretation of industrial instruments is not dependant upon the existence of ambiguity in the industrial instrument.”

[39] To assist me in resolving the dispute, I have also adopted the approach of the Full Bench in Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 3994 (Cape Australia Holdings) which set out the following:

“[7] As to the general approach to the construction of enterprise agreements the observations of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo) are apposite:

“[53] 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).”

[8] While his Honour’s observations were made in the context of interpreting an award the same principles apply to the interpretation of enterprise agreements. For example, similar observations were made by their Honours Gummow, Hayne and Heydon JJ in Amcor v CFMEU:

“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.”

[9] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo, at paragraph [57]:

“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 GeoA 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.”

[10] None of these principles were matters of contention in these proceedings and we have applied them in the determination of the appeal...”

[40] The question for determination, pursuant to the 2012 Agreement, is whether employees who are undertaking shift extensions below their substantive salary are paid at their salary or at the rate of pay for the classification of the position or grade in which they are performing the shift extension.

[41] A shift extension is, by another name, overtime. Consequently, the question for determination, put shortly is, what is the rate of pay for employees when performing overtime in a job which is below their substantive salary classification?

[42] Subclause 18.6 of the 2012 Agreement contains the “grades” of various classifications or tasks - in effect, job titles. Subclause 18.5 of the 2012 Agreement contains the rates of pay for each grade or job.

[43] Both subclauses 18.5 and 18.6 of the 2012 Agreement contain a reference to overtime as follows:

“18.5 These rates [for the various grades] shall also be the basis for calculating overtime rates of pay for full time employees in accordance with clause 21 of this Agreement”; and

“18.6 These rates [the rate of pay applicable to each classification/task or job title] will also apply to Permanent employees working overtime.”

[44] Clause 21 of the 2012 Agreement is entitled “Overtime and Meal Allowance”. Subclause 21.1 is little more than a “sign post” as it states, “Payment for overtime...shall be in accordance with the arrangements detailed in Schedule 7 of this Agreement”.

[45] Subclause 21.2 of the 2012 Agreement is also of assistance in resolving the question to be determined. It is useful to set it out again in full:

“Employees may be required for up to one-half hour preparatory and/or closing work on an “as required” basis and shall be paid overtime (extension) rates for the period involved based on the relevant grade rate of pay.” (my emphasis)

[46] Subclause 18.5 of the 2012 Agreement states that “grade” rates shall apply to work performed by the employees during ordinary time and overtime. The word “grade” applies to the “work performed” by employees. However, this is somewhat difficult from an operational context because “worked performed” can only be carried out by employees who, in turn, ascribe to themselves the classification (or grade) of the work being performed as a salary grade. For example, the work performed of a Crane Operator is graded at “4” and it would be natural for he or she to consider themselves a “grade 4” salary employee especially as the employee receives a wage consistent with a Grade 4 in subclause 18.5 of the 2012 Agreement. This operational transposition in the subclause is further compounded with the words “these rates shall also be the basis for calculating overtime...for full time employees”. The subclause commences with a grade for “work performed” and has been transposed, or interpreted, as the relevant salary grade for the purposes of calculating overtime.

[47] Subclause 18.6 of the 2012 Agreement is attended by similar but different difficulties. The subclause commences with “grade rates” being applied to various classifications/tasks which is consistent with the reference to “grade rates” applying to ‘work performed” in subclause 18.5. However, in the next paragraph, the words “grade rates” have been shortened to “rates” being applicable to “working overtime”. In summary, I find that there is no uncertainty in the meaning and application of subclause 18.6 of the 2012 Agreement as it contains, in context, a consistency of application to classification/task of jobs and overtime. Whereas in subclause 18.5 of the 2012 Agreement there is uncertainty and merging of “grade” rates for “work performed”, with the ambiguous word “rates” for overtime purposes in view of the salary scale immediately underneath.

[48] Notwithstanding these difficulties, I find that in both subclauses 18.5 and 18.6 of the 2012 Agreement, “grades” relate to the classification/task of the job being performed. Consequently, “rates” is a reference to the grade of the job and not the ascribed salary “grade” of employees.

[49] I now turn, for completion, to Schedule 7 of the Agreement.

[50] Schedule 7 is entitled “Overtime rates”. The Schedule does not concern itself with the dollar value of overtime but the multiplier of the rate of pay applicable when overtime is worked.

[51] In Schedule 7 of the Agreement, where a full time employee is “working at Salary Grade or below” and who complete their rostered eight (8) hour shift and works an extension (beyond 8 hours), the overtime multiplier is at “salary grade”.

[52] In contrast, full-time employees who are “working at Salary Grade or higher” and complete their rostered eight (8) hour shift and work an extension (beyond 8 hours), the overtime multiplier is at “grade worked”.

[53] Accordingly, an employee who is carrying out a job at a classification higher than his/her substantive level is paid at the higher grade for both the rostered eight (8) hour shift and an extension of those ordinary hours. An employee who is rostered to carry out overtime at a classification lower than his/her substantive salary grade is to be paid at their salary grade when rostered for an eight (8) hour shift and shift extension. However, Schedule 7 relating to overtime is incompatible with subclauses 18.5 and 18.6 of the 2012 Agreement.

[54] It is notable that full-time employees working a “pure overtime” shift of eight (8) hours and beyond are paid at “grade worked”. “Pure overtime” is not defined in the Agreement but, by a process of elimination, a person who is rostered off work and attends work to perform overtime, that overtime is paid at the grade of position in which the overtime is being carried out.

[55] Consequently, the 2012 Agreement contains terms relating to overtime in clauses 18 and 21 and Schedule 7. The terms are not compatible, are capable of being ambiguous and have led to uncertainty.

[56] I now turn to the history of each subclause.

[57] The narrative in subclause 18.5 of the 2012 Agreement has remained constant in the 2004, 2008 and 2012 Agreements.

[58] The narrative in subclauses 21.1 and 21.2 of the 2012 Agreement has remained constant in the 2004, 2008 and 2012 Agreements with one exception which is a reference to Schedule 9 instead of Schedule 7, which is irrelevant for the purposes of this application.

[59] Similarly, there has been no change to Schedule 7 of the Agreement in the 2004, 2008 and 2012 Agreements.

[60] However, there has been a material change to subclause 18.6 in the 2012 Agreement. As I have already set out in paragraph [20], the term provides that the rate of pay for each job classification “will also apply” to permanent employees “working overtime”.

[61] The inclusion of this term is best explained by the evidence of Mr O’Leary who stated that in the 2008 Agreement, the performance of extensions was compulsory (subclause 20.24) 1.

[62] During negotiations for the 2012 Agreement, the compulsory nature of shift extensions was varied “to provide for Extensions to be performed on a voluntary basis in the first instance and on a required basis if there is a shortage of appropriately skilled volunteers”. 2

[63] Mr O’Leary’s evidence was that the Employer agreed to modify the element of compulsion “on the basis that voluntary Extensions would not result in any increased cost to the business”. 3 To ensure that there was no additional cost, “volunteers would be paid overtime rates calculated at the grade rate applicable to the work actually performed rather than their salaried grade”.4

[64] Notwithstanding the clarity of Mr O’Leary’s written evidence, his oral evidence was somewhat confusing. Mr O’Leary either misunderstood Mr Edmonds’ line of questioning 5 or the substantive issue in dispute. For my purposes, the issue in dispute is as set out by Mr Perry in his submissions and not the overtime multiplier.

[65] Mr O’Leary also gave evidence that the Employer sought, with the additional wording of the term in subclause 18.6 of the Agreement, to give certainty to a uniform interpretation in the terminals to the applicable rate of pay for extensions. The evidence of Mr O’Leary was that, with the exception of the Fremantle terminal, in each of the other terminals, when an employee performed an extension at a grade less than their substantive salary classification, he or she was paid overtime at the grade of the work in which they performed the overtime. Despite the written material provided after the hearing, and without the benefit of having that written material tested in cross-examination, I am unable to reach a satisfactory conclusion as to whether there is a uniform interpretation existing at terminals other than the Fremantle terminal.

[66] While I am unable, on the material presented, to reach a conclusion regarding the operational practice at the terminals other than the Fremantle terminal, subclause 21.2 of the Agreement appears to give comfort to the Employer’s interpretation regarding extensions. In subclause 21.2 it states that employees shall be paid extensions “for the period involved based on the relevant grade rate of pay” - “grades” are applicable to “classifications/tasks”. For example, the classification/task of Crane Operator is a Grade 4. Accordingly, an extension is paid on the “grade” rate of pay which, in my example, is Grade 4.

[67] To determine the grade for a job or task, it is necessary to go to subclause 18.6 of the 2012 Agreement. Subclause 18.6 is the only term of the 2012 Agreement which sets out the grades of jobs performed. Consequently, as part of the construction of the 2012 Agreement, it would not be unusual to clarify that the allocated grade for a position would also apply to overtime as well as ordinary hours in subclause 18.6. While the term could have been written with more preciseness, I am satisfied that the simple and ordinary meaning of “rates” in subclause 18.6 applies to the grade of the position in which the employee is working overtime.

[68] It is trite to say that when seeking the meaning and application of a term in an agreement, nothing is admitted at random - a term appears in the agreement for a purpose. That purpose was explained by Mr O’Leary and connected to the change from the compulsory nature of shift extensions (in effect, a guarantee of labour), to the voluntary character as set out in subclause 20.22 of the 2012 Agreement as well as achieving consistency of all terminals.

[69] As part of extrinsic evidence to demonstrate the meaning and application of subclause 18.6 of the Agreement, the Employer referred to the negotiations and subsequent communication with the relevant employees. In my view, the evidence regarding negotiations is not conclusive 6. However, a PowerPoint (PP) presentation to the relevant Fremantle terminal employees dated 19 June 2012 and entitled “2012 EA Implementation” sets out specifically under the heading “Extensions” the following:

“If insufficient volunteers are [not] found, suitably qualified/skilled employees will be compelled to work and will be paid at the relevant task rate”; and

“Employees working on Extensions will be paid at a rate appropriate for the task performed during the extension”. 7

[70] Although Mr O’Leary did not give the PP presentation, he did give evidence that the PP presentation was “tailored” to the Fremantle terminal employees after the 2012 Agreement was approved by the Commission. Further, that part of the PP presentation was not relevant or included in presentations to employees in the other terminals because, in the Employer’s view, the correct interpretation and application of the 2012 Agreement.

[71] Mr Evans, properly in my view, conceded that the PP presentation to Fremantle employees took place within a week of the 2012 Agreement being approved by the Commission; he was in attendance; he could not recall exactly the discussion which took place regarding the payment for shift extensions, and agreed that the MUA did not formally raise the matter as a dispute until it affected employees following changes to the payroll system.

CONCLUSION

[72] Having considered the construction of the disputed terms of the 2012 Agreement in its entirety, the plain and ordinary meaning of the only variation relating to overtime in subclause 18.6, the submissions of the parties, the evidence and case law, the answer to the question as to what is the correct rate of pay for employees when performing a shift extension in a job which is below their substantive salary classification, is the task of the position in which the shift extension is being performed.

COMMISSIONER

Appearances:

L Edmonds on behalf of the MUA.

D Perry of counsel for the Respondent.

Hearing details:

2013:

Perth,

4 October.

 1   Exhibit R3(13)

 2   Exhibit R3(14)

 3   Exhibit R3(15)

 4   Exhibit R3(15)

 5   Transcript PN440 to PN444

 6   Exhibits R4 and R5

 7   Exhibit R3 (MO3)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR547983>