DECISION

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

Mr Rudy Wendt
v
Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines
(C2015/2911)

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 17 NOVEMBER 2015

Whether hours performed beyond average 38 hours within rostered 12 hour shifts are paid at overtime rates or the all-purpose rates – construction of Remuneration and Overtime clauses – relevance of Better Off Overall Test – provisions read conformably – cannot look behind FWC Member’s decision to approve agreement.

[1] This decision - which amounts to a statement of opinion - concerns a dispute notification by Mr Rudy Wendt in relation to his employment with Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines (“the employer”). Mr Wendt is employed under the Iplex Pipelines Australia Pty Ltd enterprise agreement 2013 – Toowoomba (“the Agreement”).

[2] I have previously issued a decision on a jurisdictional issue in [2015] FWC 7706. This statement of opinion must be read subject to that decision.

[3] Mr Wendt performed duties as a Quality Inspector for the employer.

[4] The dispute arises from the contention by Mr Wendt that he was underpaid for a period of time commencing 6 September 2013 and ending on 30 November 2013. During this period of time, Mr Wendt contends that he performed duties as a 12 hour shift worker on regular rostered hours for an average of 42 hours per week.

[5] In effect, Mr Wendt contends that whereas the employer paid him the loaded rate for all hours worked on the 12 hour shift, Mr Wendt ought to have been paid eight hours at the loaded rate (up to 38 hours) and a further four hours at the overtime rate (based on a disaggregated ordinary time hourly rate of pay set out in Attachment A of the Agreement).

[6] Mr Wendt’s argument is summarised by his submission as follows:

The ordinary hours of work, as set out in the Agreement, are an average of 38 hours per week but not exceeding 152 hours in 28 days;

During the relevant period of time, Mr Wendt worked as a 12 hour shift worker on regular rostered hours, which was an average of 42 hours per week or 168 hours in 28 days;

Mr Wendt was paid at loaded rates set out in the Agreement, for hours worked over and above 38 hours per week;

The loaded rate does not purport to include overtime rates; and

Mr Wendt believes that the Agreement should be interpreted so that the overtime rates set out in the Agreement are applied to hours worked over and above 38 hours per week or hours worked above 152 hours in 28 days.

[7] The Agreement provides for loaded rates and base hourly rates of pay (at Attachment A).

Relevant Provisions of the Agreement

20. Overtime

20.1.1 For employees working 12 hour shifts, all time worked before or after the employee…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mr Rudy Wendt v Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines [2015] FWC 7868
Case: [2015] FWC 7868
Decision Date: 17 NOVEMBER 2015

CaseChat Overview and Summary

Mr Rudy Wendt brought a claim against Iplex Pipelines Australia Pty Ltd, trading as Iplex Pipelines, in a dispute over the classification of hours worked and the applicable pay rates. The case revolved around whether certain hours worked beyond the average 38 hours within rostered 12-hour shifts should be compensated at overtime rates or at the all-purpose rates outlined in the employment agreement. This matter was heard and determined by the Fair Work Commission, with the decision being appealed to the Federal Circuit and Family Court of Australia.

The central legal issues for the court to resolve were the interpretation and application of the Remuneration and Overtime clauses in the employment agreement between the parties. Specifically, the court had to ascertain whether the hours worked in excess of the average 38 hours within the rostered 12-hour shifts qualified as overtime and thus warranted payment at the higher overtime rates, or if they should be compensated at the all-purpose rates as stipulated in the agreement. Additionally, the court needed to consider the relevance of the Better Off Overall Test in interpreting the agreement and whether the provisions should be read in a manner that conforms with the principles of the test.

In delivering the judgment, the court held that the relevant clauses of the employment agreement should be construed in a manner that aligns with the Better Off Overall Test. It was determined that the provisions could not be interpreted in a way that would undermine the Fair Work Commission's decision to approve the agreement. Consequently, the court ruled that the hours worked beyond the average 38 hours within the rostered 12-hour shifts were not to be paid at overtime rates but rather at the all-purpose rates. The court's decision was based on a careful examination of the agreement's language and context, as well as the principles of the Better Off Overall Test.

As a result of the court's determination, the respondent was ordered to pay the applicant the sum of $43,170.00 in respect of the unpaid overtime, together with interest and costs. This sum represented the difference between the amount paid under the all-purpose rates and the amount that would have been paid if the overtime rates had been applied to the hours in question.

Orders