National Union of Workers, New South Wales Branch v FreshFood Management Services Pty Ltd

[2012] FWA 10832

Note: An appeal pursuant to s.604 (C2013/2699) was lodged against this decision - refer to Full Bench decision dated 15 April 2013 [[2013] FWCFB 1907] for result of appeal.

[2012] FWA 10832

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Union of Workers, New South Wales Branch
v
FreshFood Management Services Pty Ltd
(C2012/1110)

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 24 DECEMBER 2012

Enterprise Agreement - dispute about matter arising under Agreement - Rostered Day Off - Clause 35(c).

[1] In this matter Fair Work Australia (FWA) is asked to resolve a dispute between the National Union of Workers, New South Wales Branch (NUW) and Fresh Food Management Services Pty Ltd (the Company) pursuant to the dispute resolution procedure contained in the Freshfood Management Services Pty Ltd as a wholly owned subsidiary of Freshfood Australia Holdings Pty Ltd & National Union of Workers, the Australian Manufacturing Workers Union & the Communications, Electrical, Electronic, Energy Union of Australia (New South Wales) (“ETU”) Enterprise Agreement 2010 (the Agreement) in relation to the Company’s Rostered Day Off (RDO) system.

[2] The parties agree that the issue in dispute is:

“whether, in a month where an employee is required to work on an RDO, the entitlements in clause 35(c) of the Agreement are payable in addition to the hours already worked by the employee.”

[3] The parties’ respective positions on the appropriate remuneration were set out by the NUW in its written submission in a manner generally agreed by the Company as follows:

“The union’s position is that the entitlements in clause 35(c) are in addition to the requirement to pay for all of the 152 hours already worked towards the RDO. The accrued hours towards the RDO remain payable. An employee working on the RDO remains entitled to a paid day off. The employee is entitled to payment of the equivalent of 168 hours for the month.

The company’s position is that an employee who works on the RDO is paid at ordinary rates for the week and is either paid an additional 8 hours or receives an alternative day off. This is the equivalent of 160 hours for the month.”  1

Background

[4] On 18 September 2012 the NUW made an application pursuant to s.739 of the Fair Work Act2009 (the Act) and sought conciliation of the dispute in accordance with Clause 13 - Disputes Procedure of the Agreement. The matter was listed before me for conciliation on 25 September 2012 and again on 16 October 2012, however, the dispute was not able to be resolved by agreement and the matter was referred for arbitration.

[5] Clause 13(g) - Disputes Procedure of the Agreement reads as follows:

“(g) At any time either party shall have the right to notify the dispute to Fair Work Australia (Tribunal), or to another agreed Arbitrator, for conciliation in the first instance, and, if conciliation fails, for arbitration.”

[6] There was no objection to the exercise of the jurisdiction of the Tribunal.

[7] The matter was heard before me on 14 December 2012. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) sought leave to intervene and leave was granted. The AMWU and the CEPU supported the submissions of the NUW.

[8] The NUW was represented by Mr Meuller, the AMWU by Ms Saunders and the CEPU by Mr Weizman. Permission to appear was granted to Mr Darams of counsel and Mr Goonrey, solicitor, representing the Company. Evidence was given on behalf of the NUW by Mr Oberman and on behalf of the Company by Ms Standley.

Legal framework

[9] The Agreement contains a number of provisions of relevance to the determination in this matter. They are:

“35. ROSTERED DAYS OFF

(a) The Rostered Day Off (RDO) shall be set by agreement with the teams, depending on manufacturing requirements and may be staggered within and between groups, though any alteration will require at least two weeks notification, unless by mutual agreement of the individual Employees and the Employer. An individual and his/her team may rearrange RDO’s providing it is acceptable to all parties.

(b) In the case of the Instant Coffee Processing (ICP) Employees, it is recognised that there will be people’s needs and operational needs which have to be satisfied. An ICP holiday policy has been developed and will be used to assist parties in concluding RDOs and holiday arrangements.

(c) An Employee who is required by the Employer to work on a rostered day off shall be paid overtime rates or elect to take an alternative day off at a mutually agreeable date. Such choice shall be at the option of the Employee.

(d) An Employee may accrue up to a maximum of 6 Rostered Days Off. Accrued days can be taken as one or several days, but only on a mutually agreed date(s). Taking of an accrued day or days must be agreed upon by both parties, taken as whole days only and must not disrupt normal production and must be recorded as agreed. Where a day is taken and it has not been agreed to by both parties the day will be treated as leave without pay.

36. HOURS OF WORK

36.1 General

Hours of work will be determined mutually between the parties taking into account the operational needs of the business and the teams, provided that the work arrangement is based on a thirty eight hour week. By mutual agreement, normal working hours may exceed eight on any day (Monday to Sunday) on a permanent shift basis at normal rates of pay.

(a) Generally, the ordinary hours of work will not exceed 38 hours per week and shall not exceed:

(i) Twelve hours during any consecutive twenty-four hours; and

(ii) One hundred and fifty two hours in twenty-eight consecutive days.

(b) The ordinary hours shall be worked nineteen days Monday to Friday in any period of four weeks. (This does not apply to Continuous shifts).

Alternately: Where agreement exists between the employer and the employee or between the employer and the majority of employees in the work area concerned, the ordinary hours of work can be worked at any time on any day of the week. Saturday and Sunday inclusive subject to the appropriate weekend penalty rates being applied.

38. OVERTIME

38.1 For the purpose of computing overtime, each day’s work shall stand alone and overtime shall be calculated using thirty-eight as divisor for all Employees.

38.2 Payment For Overtime - (Excluding Continuous Shift Employees)

(a) All work done outside ordinary hours shall be paid at the rate of time and a half for the first two hours and then at double time, such double time to continue until the completion of the overtime worked.

(b) Overtime worked on a Saturday or a Sunday shall be paid at double time and on a public holiday payment will be made at double time and a half.

APPENDIX 1: QUARANTINE PROVISIONS -INSTANT COFFEE PLANT

PAYMENT OF OVERTIME - All overtime done outside ordinary hours is paid at the rate of double time.”

[10] The Agreement is underpinned by two modern awards – the Food, Beverage and Tobacco Manufacturing Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010. Clause 8 of the Agreement states:

“The terms of the Food, Beverage and Tobacco Manufacturing Award 2010 MA0000; and the Manufacturing and Associated Industries and Occupations Award 2010 MA000010 (“the Awards”), as varied from time to time, are incorporated into this Agreement. If an incorporated Award term is inconsistent with an express term of this Agreement, the express term in the Agreement prevails over the incorporated Award term to the extent of the inconsistency.

Further provided, any “flexibility term” (as defined in the Fair Work Act 2009 (“the Act”) that is contained in the Award(s) is not incorporated into this Agreement.

In this Agreement references to the Award shall mean the Award as incorporated into the Agreement unless the context requires otherwise.

Upon incorporating Award terms into the Agreement the incorporated Award terms are to be read as altered with the appropriate changes to make them provisions of the Agreement rather than provisions of an award. So, for example, the loadings, penalties and allowances in the Award apply to the rates of pay due under the Agreement, not the Award rate.

Additionally if a term of this Agreement provides for an entitlement for an Employee (the Agreement entitlement) that is the same as an entitlement under the National Employment Standards (the NES entitlement):

(a) Those terms operate in parallel with the Employee’s NES entitlement, but not so as to give the Employee a double benefit; and

(b) The provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the Agreement entitlement.”

[11] Clauses 35, 36, 38 and Appendix 1 are not inconsistent with the corresponding provisions of the modern awards and in any event the Agreement prevails to the extent of any inconsistency. The corresponding provisions of the modern awards do not add any relevant rights and obligations and I conclude that the rights and obligations in relation the question posed derive from the Agreement not the modern awards.

[12] Each of the provisions of the Agreement set out above bear in some way on the question I am asked to address. In so doing I am required to interpret the Agreement in order to resolve this dispute by arbitration.

[13] In Cram; Ex Parte Newcastle Wallsend Coal Co Pty Ltd 2 Mason CJ, Brennan, Deane, Dawson and Toohey JJ said at paragraph 9:

“The making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function. But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power.”

[14] Whilst I am to exercise arbitral, rather than judicial power, the approach taken by courts to the task of interpretation of statutes, awards, agreements and contracts provides guidance.

[15] The words of the statute, award, agreement or contract must first be given their plain meaning and only when they are ambiguous does interpretation require the examination of surrounding circumstances. In the High Court judgement Western Export Services Inc v Jireh International Pty Ltd 3 Gummow, Heydon and Bell JJ upheld the decision of Macfarlan JA in the New South Wales Court of Appeal in which he said:

“A court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and business like operation if an interpretation different to that dictated by the language were adopted.” 4

[16] Their honours went on to say at paragraphs 3 and 4:

“Acceptance of the applicant’s submission, clearly would require reconsideration by this Court of what was said in Codelfa Construction Pty Ltd v State Rail Authority of NSW by Mason J, with the concurrence of Stephen J and Wilson J, to be the “true rule” as to the admission of evidence of surrounding circumstances. Until this Court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent. The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts.

The position of Codelfa, as a binding authority, was made clear in the joint reasons of five Justices in Royal Botanic Gardens and Domain Trust v South Sydney City Council and it should not have been necessary to reiterate the point here.”

[17] In Codelfa 5 Mason J said at paragraph 22:

“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.”

[18] In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue 6the High Court (Hayne, Heydon, Crennan and Kiefel JJ) said at paragraph 47:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”

[19] The context and industrial purposes of an industrial instrument is relevant to its interpretation. In Amcor Limited v Construction, Forestry, Mining and Energy Union and Others 7 Gleeson CJ and McHugh J said at paragraph 2:

“The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose...”

[20] In the same judgement Kirby J said at paragraph 77:

“As the judges of the Federal Court correctly pointed out, before them the issue was, and was only, the meaning and application of the Agreement, specifically cl 55.1.1. That issue required the identification of the legal rights of the parties under the Agreement. Such rights would not be determined by judges blind-folded to the industrial context. Yet in the end their duty, as in all tasks involving a judicial construction of a text having legal force, was to give effect to that text. The judges of the Federal Court, in my view, were correct in adopting that approach.”

[21] And at paragraph 96:

“The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd 8, where his Honour observed:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”“

[22] In Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd 9a Full Bench of the Federal Court (Marshall, Tracey and Flick JJ) said at paragraph 18:

“What is true of commercial contracts and their construction is also true of the construction of industrial agreements where regard must be had to the industrial context and the purpose of the provisions in question.”

[23] Conduct of the parties after the making of an agreement is not relevant to its interpretation however the history of the provision prior to making the agreement is able to be considered. In Short v Hercus Pty Limited 10, a decision of the Industrial Division of the Federal Court, Burchett J says at page 517:

“The question was raised whether it is legitimate, for the purpose of construing a clause of an award, to look at what was called the history of the provision... the court relied on its adoption by the parties from the series of prior agreements, under which a particular interpretation had been accepted, as showing its true construction. There was authority to support this approach... But as the construction of the clause which appealed to the court had also been acted upon after the parties had entered into the industrial agreement, the court referred to Watcham v. Attorney-General of the East Africa Protectorate (1919) AC 533, a decision of the Privy Council which is no longer regarded as good law: F.L. Schuler A.G. v. Wickman Machine Tool Sales Ltd [1973] UKHL 2; (1974) AC 235. So far as Merchant Service Guild is concerned with conduct after the making of the industrial agreement, it was accordingly not followed in Seamen’s Union of Australia v. Adelaide Steamship Co. Ltd. (1976) 46 FLR 444 at 445; but I do not think that decision affects its authority in relation to the use which may be made, in appropriate circumstances, of the history of a clause found in an industrial agreement...No one doubts you must read any expression in its context. And if, for example And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so.”

[24] In City of Wanneroo v Holmes 11 also a decision of the Federal Court Industrial Division French J says at paragraph 43:

“The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words - The Clothing Trades Award (1950) 68 CAR 597 (Aust. Indus. Ct. F.C.). The words are to be read as a whole and in context - Australian Timber Workers Union v W. Angliss & Co. Pty Ltd (1924) 19 CAR 172. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award - Pickard v John Heine & Son Ltd [1924] HCA 38; (1924) 35 CLR 1. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all - Seymour v Stawell Timber Industries Pty Ltd [1985] FCA 236; (1985) 9 FCR 241, 244 (Northrop J.), 254 (Keely J.) cf. 265 (Gray J.). The logs of claim and arbitrator’s reasons for decision may be referred to to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. Evidence of the conduct of the parties subsequent to the making of the award however, cannot be relied upon to construe it. - Seamen’s Union of Australia v Adelaide Steamship Co. Limited (1976) 46 FLR 444, 446, disapproving Merchant Seamen’s Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248. That is not to say the words must be interpreted in a vacuum divorced from industry realities. As Street J. said in Geo. A. Bond & Co. Ltd (in liq.) v McKenzie (1929) AR(NSW) 498 at 503:

“...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result...from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.” - see also Re Crown Employees (Overtime) Award (1969) AR(NSW) 60, 63; Re Hospital Employees Administrative and Clerical (State) Award (1982) 2 IR 123.”

It is of course no part of the Court’s task to assign a meaning in order that the award may provide what the Court thinks is appropriate - Australian Workers Union v Graziers Association of New South Wales (1939) 40 CAR 494. Indeed it has been said that a tribunal interpreting an award must attribute to the words used their true meaning even if satisfied that so construed they would not carry out the intention of the award making authority - Re Health Administration Corporation; Re Public Hospital Nurses (State) Award (1985) 12 IR 122; Rogers Meat Co. Pty Ltd v Howarth (1960) AR(NSW) 291; Re Government Railways and Tramways (Engineers etc) Award (1928) AR 53, 58 (Cantor J.).”

[25] Mr Darams observed that the High Court judgement in Western Export Services Inc v Jireh International Pty Ltd 12 is more recent authority than Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd13, Amcor Limited v Construction, Forestry, Mining and Energy Union and Others14 and Kucks v CSR Ltd15, with which Kirby J agreed in his judgement. It is true that in refusing special leave in Jireh the three judges affirmed the principles stated in Codelfa. It seems to me that at the very least if an examination of the surrounding circumstances is warranted because the words themselves do not provide the complete answer to a question then these decisions are a useful guide.

[26] In any event I consider that all these judgements provide guidance rather than strict rules in the exercise of arbitral power. In Kucks v CSR Ltd 16 Madgwick J says at page 184:

“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.”

[27] A decision of Lawler VP in the Australian Industrial Relations Commission, the predecessor tribunal to FWA is instructive. In Watson v ACT Department of Disability Housing and Community Services  17 he says at paragraph 15:

“In summary, the general principles governing the construction of contracts laid down by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales 18 apply to the construction of industrial agreements. However, consistent with the approach in Kucks19and Short v FW Hercus Pty Ltd20, an industrial agreement must always be construed in context: the context of particular provisions within the agreement as a whole and the context in which the agreement was made including any relevant statutory or historical context. Extrinsic evidence as to the context in which the agreement was made, including the statutory and historical context, will be admissible to demonstrate the existence of ambiguity and or to resolve ambiguity.”

[28] A recent decision in the Federal Magistrates Court of Australia in Construction, Forestry, Mining and Energy Union v CSR Limited 21 provides useful guidance on a question related to that posed by the parties. Driver FM was required to consider “whether employees, having worked their rostered days off (RDO) and having received payment in accordance with the applicable award for that work, are also entitled to accrual of the RDO and consequential benefits”

[29] He concluded that they were and ordered CSR to pay employees sums of money in respect of failure to provide RDOs over a certain period.

[30] At paragraphs 27 and 28 he states the contentions of the parties as follows:

“CSR agrees that the rostering arrangement prescribed by the Award at sub-clause 28.2(a) in respect of day workers and sub-clause 28.3(b)(ii) in respect of shiftworkers requires the accumulation of 0.4 hours each day and a paid day off at the twentieth day of the rostering cycle.

However, CSR disagrees that this results in an accrual as alleged by the Union and calculated n the calculations annexed to Ms Rodney’s affidavit. This is because sub-clause 28.2(g) provides that a day worker who works on a paid rostered day off must be paid penalty rates and provisions prescribed for Saturday work. The payment of the penalty rate is the compensation for working the rostered day off. The Award does not expressly require that a substituted day be provided to the employee in those circumstances or an accumulation of an RDO to be taken at a later date, that is, the entitlement to the RDO for a day worker is said to be extinguished if the employee is required to work and is paid the Saturday penalty rates.”

[31] At paragraphs 43 and 46 he draws conclusions as follows:

“It is true, as CSR contends, that the Award does not expressly provide for RDOs to accrue where employees are required to work on a RDO. Neither does that Award expressly provide that RDOs are not to accrue in those circumstances. There are, however, implications that can be drawn from the Award that any hours worked on a RDO should accrue towards future RDOs. The Union points to subclause 28.2(g), subclause 28.3(b)(ii) and subclause 28.3 (b)(vi) in support of their contention that hours worked on a RDO do accrue...

I accept the Union’s contention that hours worked on a RDO accrue towards future RDOs. It is immaterial what rate of pay applies to those hours worked. I also accept the Union’s contention that untaken but accrued RDO hours are required to be paid out on termination of employment.”

Consideration

[32] To address the question posed by the parties requires a consideration of the whole agreement and how the clauses interact to create the rights and obligations of the parties.

[33] There is no ambiguity about the obligation of the Company in respect to time worked on an RDO. Time worked on an RDO is paid for at overtime rates or in the alternative, paid for at ordinary time with an additional day off. This is explicit from the words of clause 35(c) as follows:

“(c) An Employee who is required by the Employer to work on a rostered day off shall be paid overtime rates or elect to take an alternative day off at a mutually agreeable date. Such choice shall be at the option of the Employee.”

[34] In the case of employees from the Instant Coffee Plant the overtime rate applicable is double time. This is derived from Appendix 1 of the Agreement which reads as follows:

“APPENDIX 1: QUARANTINE PROVISIONS -INSTANT COFFEE PLANT

PAYMENT OF OVERTIME - All overtime done outside ordinary hours is paid at the rate of double time.”

[35] In the absence of clause 35(c) time worked on an RDO would still be required to be remunerated at overtime rates because time worked on an RDO is time worked over and above the ordinary hours of 152 in a 28 day cycle.

[36] Clause 36.1(a)(ii) means that 152 hours over 28 consecutive days is the extent of ordinary hours in that cycle and clause 38.2(a) means that time worked outside ordinary hours is to be paid for at overtime rates.

[37] Clause 36.1(a)(ii) reads as follows:

“36.1 General

Hours of work will be determined mutually between the parties taking into account the operational needs of the business and the teams, provided that the work arrangement is based on a thirty eight hour week. By mutual agreement normal working hours may exceed eight on any day (Monday to Sunday) on a permanent shift basis at normal rates of pay.

(a) Generally the ordinary hours of work will not exceed 38 hours per week and shall not exceed:

(i)...

(ii) One hundred and fifty two hours in twenty-eight consecutive days.”

[38] Clause 38.2(a) reads as follows:

“38.2 Payment For Overtime - (Excluding Continuous Shift Employees)

(a) All work done outside ordinary hours shall be paid at the rate of time and a half for the first two hours and then at double time, such double time to continue until the completion of the overtime worked.”

[39] Clause 35 is consistent with clause 36.1(a)(ii) and clause 38.2(a) and is, in effect, a more particular statement of the entitlement that arises from the interaction of these two provisions. There is no dispute between the parties in relation to this.

[40] The dispute in this matter is not about the payment for time worked on an RDO. It is about the time accrued towards the entitlement to take time off with pay. It is important not to conflate the two concepts. The intention of the Agreement in relation to this matter is not able to be ascertained entirely from a reading of the words in the agreement. Here the principles of interpretation of industrial agreements discussed above come into play.

[41] The effect of clauses 36.1(a)(ii) and 36.1(b) of the Agreement taken together is that the arrangement of working hours may be that 152 hours are worked over 19 working days in a 28 day cycle. Beyond the reference to this arrangement of working hours in clauses 36.1(a)(ii) and 36.1(b) of the Agreement, it is silent on how this should occur.

[42] The evidence before me from both Mr Oberman and Ms Standley is that the practice at the Company is for employees to work for 8 hours per day for 19 days to fulfil 152 ordinary hours of work in a 28 day cycle. (8 multiplied by 19 is 152). In so doing they work 0.4 unpaid hours in addition to 7.6 paid hours per day. 7.6 hours per day are the ordinary hours per day for an employee working a 38 hour week over 5 days a week (38 divided by 5 is 7.6). But for the provision of clause 36.1(b) employees would be required to be paid for this additional time at overtime rates. The time accrues progressively such that by the end of the 19th day of work in a cycle, 7.6 hours, or one day, has been accrued and it is ‘banked’ to be drawn on at a later date. The practice is to regard the 20th day in the cycle as the RDO but the time could be drawn on at any other time subject to the provisions of the Agreement.

[43] The practice of the company, similar to that in many companies in manufacturing, is to call this day a Rostered Day Off because the time to be taken off with pay is identified in the roster in advance for one or more employees for operational convenience. In the service sector, where it can be more practical for employees to take their accrued time off as individuals at short notice, the time is colloquially know as “time off in lieu” or “flex time”. The concept is the same. Time worked without pay is accumulated and taken at a later time as time off with pay.

The agreement provides that a maximum of 6 RDOs may be accrued. That is, 6 tranches of 7.6 hours may be in the “bank” to be taken at a time agreed between the company and the employee. An RDO is in the bank because time has been accrued but not yet taken. The agreement contemplates this occurrence by providing for a maximum number of accrued RDOs in clause 35(d).

[44] The question arises as to whether, in the circumstances that an employee is required to, and does, work on a day that was otherwise rostered to be a day off (an RDO) a day ought to be deducted from the RDO bank. I do not think so because the time accrued has not been taken, the time remains in the bank until such time as it is taken, subject to the provision that there cannot be more than 6 days in the bank at any one time.

[45] It follows that the answer to the question posed by the parties is “yes”.

[46] Mr Darams urged upon me a conclusion that as the provision of the Agreement was in identical terms to the Enterprise Agreement that it superseded and the manner in which the Company had implemented this had not been the subject of dispute that this weighs in favour of the interpretation pressed by the Company 22. I find that this is a narrow interpretation of the authorities in relation to the history of the provisions of the Agreement. Such history must have regard to all the relevant antecedents including the broader industrial context, legislation, awards etc. In any event it is unnecessary for me to reach a conclusion on this point as I have reached my decision based on my reading of the Agreement.

DEPUTY PRESIDENT

Appearances:

Mr S. Mueller, National Workers Union, New South Wales Branch, with Ms L. Saunders, Australian Manufacturing Workers’ Union and Mr D. Wiseman, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for the Applicant

Mr J. Darams, of Counsel, with Mr A. Goonrey, Lander and Rodgers, for FreshFood Management Services Pty Ltd

Hearing details:

2012.

Sydney

14 December.

 1   Outline of Submissions - NUW, NSW Branch, PN 6-7

 2 (1987) 163 CLR 140

 3 [2011] HCA 45

 4   Ibid at 1

 5   Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337

 6 [2009] HCA 41

 7 [2005] HCA 10

 8 (1996) 66 IR 182

 9 [2011] FCAFC 67

 10 (1993) 40 FCR 511

 11 [1989] FCA 369

 12 [2011] HCA 45

 13 [2011] FCAFC 67

 14 [2005] HCA 10

 15 [1996] IRCA 166

 16   Ibid

 17   [2008] AIRC 291

 18 [1982] HCA 24

 19   Kucks v CSR Ltd (1996) 66 IR 182

 20 (1993) 40 FCR 511

 21 [2012] FMCA 983

 22   Transcript PN 184

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