National Union of Workers v CSL Limited

[2017] FWC 5444

[2017] FWC 5444

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
CSL Limited
(C2017/4235)

Pharmaceutical industry
COMMISSIONER RYAN	MELBOURNE, 24 OCTOBER 2017

Alleged dispute about penalty rates for shift workers.

[1] The subject matter of this dispute concerns the intention of CSL to alter the method of payment of shift penalties to some shift workers from the current system of paying average shift penalties each pay cycle to paying actual shift penalties for each pay cycle.

[2] The matter in dispute has been subject to a conciliation conference which failed to resolve the matter. The parties have agreed that the matter in dispute be arbitrated by the Commission. As the dispute concerns the interpretation and application of the terms of an enterprise agreement no witness evidence was led by either party. Both parties agreed that the matter in dispute could be determined on the papers. Detailed written submissions were filed by both parties.

[3] The relevant provisions of the Agreement are:

“3. No extra claims

The parties agree that they will not pursue any extra claims relating to conditions of employment or any other matters related to the employment of the employees, whether dealt with in the agreement or not, over the life of the agreement.

4. Relationship to other agreements

(a) This Agreement supersedes and replaces the:

(1) CSL Ltd 2012 Enterprise Agreement; and

(2) CSL Ltd 2012 Stores, Warehouse, Cleaning and Gardeners Enterprise Agreement.

and any unregistered agreements or uncertified agreements between any of the parties.

(b) This Agreement overrides and excludes all of the following:

(1) Pharmaceutical General: CSL Award 1998;

(2) CSL Senior Management Award 1999; and

(3) CSL Limited Sales Force Award 1999.

(c) This Agreement does not exclude or override the agreement entered into between the parties reflected in a letter dated 09 November 2015.”

6 Dispute resolution

The following process applies to a dispute between parties covered by this Agreement in relation to a matter arising under this Agreement or in relation to the National Employment Standards.

7.1 Consultation obligations

(a) In the event that:

(1) CSL has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise; and

(2) the change is likely to have a significant effect on employees covered by this Agreement; or

(3) CSL proposes to introduce change to the regular roster or ordinary hours of work of employees.

CSL must notify the relevant employees of the decision to introduce the major change.

(b) The relevant employees may appoint a representative for the purposes of consultation under this clause.

(c) If:

(1) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(2) the employee or employees advise CSL of the identity of the representative.

CSL must recognise the representative.

(d) As soon as practicable after making its decision (or in the case of roster change after proposing to introduce the change), CSL must discuss with the relevant employees:

(1) the introduction of the change; and

(2) the effect the change is likely to have on the employees; and

(3) measures CSL is taking to avert or mitigate the adverse effect of the change on the employees; and

(4) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

(e) For the purposes of such discussions, CSL must provide, in writing, to the relevant employees:

(1) all relevant information about the change, including the nature of the change proposed; and

(2) information about the expected effects of the change on the employees; and (3) any other matters likely to affect the employees.

(f) CSL is not required to disclose confidential or commercially sensitive information to the relevant employees.

(g) CSL must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

(h) In this clause, a major change is likely to have a significant effect on employees if it results in:

(1) the termination of the employment of employees; or

(2) major change to the composition, operation or size of the employer’s workforce or to

the skills required of employees; or

(3) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

(4) the alteration of hours of work; or

(5) the need to retrain employees; or

(6) the need to relocate employees to another workplace; or

(7) the restructuring of jobs.

(i) In this clause, “relevant employees” means the employees who may be affected by the relevant change.

12.6 Averaged shift penalties

CSL and affected employees may consider a proposal that shift penalties be averaged over an agreed period.”

Relevant authority

[4] The Full Bench decision in AMWU v Berri P/L  1 sets out the principles to be followed in interpreting the terms of an enterprise agreement as follows:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

The NUW case

[5] The NUW’s written submissions contained the following contentions:

“Mutual agreement

12. To implement an averaged penalties system, the agreement required both CSL and affected employees to come to agreement.

13. Such agreement had already being reached prior to bargaining for the current enterprise agreement and had being in place for many years.

14. Therefore, clause 12.6 of the current agreement is essentially a historical enabling clause that recognizes the validity of the past agreement to average shift penalties.

15. There is nothing in the plain meaning of clause 12.6 to suggest either CSL or affected employees may unilaterally terminate the agreement to average shift penalties.

16. The agreement includes extensive consultation clauses regarding changes to work processes, career structures and remuneration systems8 which fetter the ability of one party to unilaterally alter employment conditions.

17. When reading the agreement in context, it appears unlikely that the wording of clause 12.6 would envision the ability of one party to unilaterally terminate an agreement to average shift penalties. If this was the objective intention of the clause, it would have being expressly worded as such.

18. As the clause requires the mutual agreement of both CSL and affected employees to create agreement to implement an averaged penalties system, a plain reading requires the parties agree to end it. There is no capacity for unilateral termination.

No extra claims

19. Further and in the alternative, the unilateral change to the remuneration system constitutes an extra claim under clause 3 of the Agreement.

20. The agreement contains a wide 'no extra claims' clause which prevents parties to the agreement from pursuing 'any extra claims relating to conditions of employment or any other matters related to the employment of the employees, whether dealt with in the agreement or not, over the life of the agreement'.9

22. Under the agreement relevant to this matter, the 'no extra claims' clause applies to both conditions of employment specifically addressed in the agreement and those not addressed in the agreement.

23. The relevant question for determination is whether the long-standing custom and practice, based on agreement between CSL and affected employees, to average shift penalties over an 8 week roster amounts to a condition of employment.

24. Our view is that it is a condition of employment.

11. ……….. There are only two logical interpretations of clause 12.6 regarding termination of an agreed averaging arrangement. Either unilateral termination is possible, or mutual agreement of both parties is required.

12. It is our submission that the latter is the better interpretation as the creation of the arrangement required the agreement of both employees and the employer. It logically follows that there must be a corresponding agreement in order to terminate the arrangement.

15. The Respondent’s primary argument is the presence of clauses in the Agreement which allow for the payment of penalties on the basis of actual hours worked.

16. The presence of these clauses merely indicates that a mutual agreement between the parties to end the averaging arrangement is possible, and provides an alternative penalty payment system.

17. Their presence in the Agreement is not contradictory with the Applicant’s interpretation of clause 12.6.

The CSL case

[6] The written submissions of CSL contained the following contentions:

“Consultation and Change

21. CSL continues to follow its consultation and change procedure outlined in part 1, clause 7 the CSL Agreement 2015 (the Agreement) (Annexure A). The Agreement provides that once CSL has made a decision to make a major change, it must consult with its employees in the terms outlined.

22. The consultation and change clause also places obligations on the employees and their representatives. Relevantly, part 1, clause 7 of the Agreement provides that “The parties agree to the process of ongoing co-operation and consultation on:

a. CSL's continued achievement of career structures and remuneration systems that align the skills, competencies and behaviours required within CSL's work environment with internal employment conditions.

…

c. CSL's continuing requirement to implement change in light of changes in business circumstances, market needs and company structure” [Emphasis added].

23. CSL made a decision to introduce the change to calculation of penalty rates and communicated that decision on Friday 28 July 2017 in a face to face session to selected employees from affected areas and included all union delegates.

28. CSL has been and continues to be open to providing reasonable and appropriate mitigation measures to assist employees through the change.

4. CSL submits the averaging clause simply provides that parties to the Agreement “may consider a proposal to average shift penalties over an agreed period of time”. The averaging clause is neither ambiguous nor susceptible of more than one meaning. The meaning of the clause can be derived from its words and does not require further context or interpretation from other sources.

5. CSL accepts that the averaging clause is a legacy clause that has remained in the CSL enterprise agreements since the 2006 enterprise agreement. It is reasonable to assume that the averaging clause has been used by CSL and a certain cohort of its employees at some point in time to reach an agreement to average penalty rates in particular area. However, it is CSL’s submission that if there is any ambiguity in this dispute, it is not derived from the Agreement or the averaging clause, but rather, it is derived through a lack of evidence as to what proposal was made pursuant to the averaging clause that has precipitated the present circumstance of averaging penalty rates in confined areas of the business.

6. CSL also accepts that the averaging clause does not provide that CSL may unilaterally terminate an agreement to average shift penalties. However, the opposite is also true. The averaging clause could not be construed as prohibiting CSL from deciding to cease a shift penalty averaging arrangement.

7. Considered in the context of the Agreement, the default position under the Agreement is that CSL will pay employees their actual penalty rates (that is, the employee will be paid their penalty rate that applies to each relevant shift). The purpose of the averaging clause, in plain language, operates for the purposes of allowing CSL and its employees to consider proposals to average penalty rates. It cannot reasonably be construed, as the Applicant contends, as providing for continuation in perpetuity of previous averaging agreements, and it cannot prevent CSL from reverting to the default position of paying ‘actuals’.

8. The better view is that CSL can decide to cease the averaging system, and revert to paying shift penalties in accordance with the specific provisions of the Agreement, provided that it follows the agreed cooperation, consultation and change clauses.3 The consultation clause is clear that agreement need not be reached for CSL to implement change, only that CSL must appropriately consult with affected employees “after CSL has made a definite decision to introduce a major change”.4

9. Clause 12.6 of Part 2 of the Agreement therefore does not operate to prevent CSL from ceasing the averaging arrangements and revert to paying shift penalties to employees strictly in accordance with their entitlements under the Agreement.

No Extra Claims

10. CSL submits that the no extra claims (NEC) clause of the Agreement could not be enlivened by CSL’s decision to discontinue the averaging of penalty rates.

11. It cannot be the case that the NEC prevents change of any kind at all. The Agreement clearly contemplates that change can occur during its life. This is indisputable. Clause 7(c) of Part 1, for instance, acknowledges that CSL has a “continuing requirement to implement change…” Clause 7.1 of Part 1 provides a consultative process for implementing change.

12. Not only does the Agreement contemplate and allow for changes to be implemented by CSL, the Agreement also expressly provides the circumstances in which shift penalties are to apply. CSL is only seeking to do what the Agreement unambiguously states it must do, that is, pay a shift worker “the relevant penalty rate for the time worked”.

13. The relevant question therefore is not about whether an agreement made under the averaging penalty clause is a condition of employment; it is whether CSL is prevented by the NEC from abiding by the terms of the Agreement. In this matter, it would be asinine to construe the NEC in such a way that it would prohibit CSL from paying actual penalty rates when the parties have unequivocally agreed to those terms.

15. In this matter, the terms of the Agreement do not preclude CSL from ceasing the penalty averaging arrangement. CSL is not seeking to vary a clause or to add or remove any other clause of the Agreement. CSL simply wishes to cease its current averaging arrangements so that employees are paid in a manner which strictly accords with the agreed entitlements as they are provided for under the terms of the Agreement.

Consideration

[7] The parties are in agreement that clause 12.6 has been present in enterprise agreements at CSL for many years and that some averaging of shift penalties has occurred for a number of years.

CSL refers to the Broadmeadows site which is covered by the Agreement as Behring BMW. CSL in its written submission identified the following:

“17. Within CSL, averaging penalty rates is unique to Behring BMW. All other CSL sites pay actual penalty rates and where required, they average ordinary hours worked. Paying actual penalty rates will standardise the approach across CSL’s network, bringing Behring BMW into line with CSL’s global manufacturing sites.

18. The averaging of penalty rates in Behring BMW is not universal, it is confined to a cohort of approximately 150 employees in our toll manufacturing area (out of approximately 1000 employees across the site). In Behring BMW’s Privigen facility, all employees work shift work, though none have their penalty rates are averaged. It will similarly be the case when our AlbuRx facility comes online.

19. In addition, for those who do have penalty rates averaged, it is only calculated on afternoon, night, Saturday and Sunday penalties. Averaging it is not calculated for public holiday penalties, which are paid as actuals through manual reconciliation process.”

[8] Both parties agree that clause 12.6 enables averaging of shift penalties to occur under the Agreement.

[9] At its simplest clause 12.6 operates to permit CSL and any employees covered by the Agreement to consider a proposal shift penalties be averaged rather than be paid on an as earned basis. This must mean that any of the employees who are covered by the Agreement and who are currently paid shift penalties on an as earned basis could propose that they be paid shift penalties on an averaging basis.

[10] Clause 12.6 of the Agreement is silent as to whether the consideration of a proposal to average shift penalties over an agreed period can or should lead to a change in the payment of shift penalties if an agreement is reached between CSL and the affected employees.

[11] Clause 12.6 sits inside the clause dealing with Shift Work which in turn sits within Part 2 – “Flexible Work Patterns” of the Agreement. The Dispute Resolution clause and the Consultation and Cooperation clause sit within Part 1 “Application and Operation of the Agreement”. Part 4 of the Agreement is titled “CSL Salaries and Work Related Allowances” and generally provides for the rates of pay and allowances and superannuation. There are no terms of the Agreement which specifically deal with the periodicity of payments of wages or with the manner of payment of wages.

[12] In the overall structure of the Agreement clause 12.6 appears to be a term, specific to shift workers, which relates to an exception to a rule without stating what the rule is.

[13] Clause 12.6 permits a process to start but does not deal with how the process works or what happens at the end of the process.

[14] Clause 12.6 does not require anyone to do anything.

[15] At its simplest it would appear that clause 12.6 is a term which is no more than permissory and which is not even hortatory.

[16] Given that all that clause 12.6 permits is for CSL and affected employees to consider a proposal that shift penalties be averaged over an agreed period there would appear to be no need to provide for this in the Agreement. Such consideration could occur whether or not clause 12.6 was a term of the Agreement.

[17] The principles for the interpretation of enterprise agreements as stated in Berri are built on the principals stated in AMIEU v Golden Cockerel P/L. 2 Importantly the principals in Berri and Golden Cockerel are distilled from the authorities discussed in those cases. The principals must be understood in light of the authorities which underpin each principal.

[18] A term of any enterprise agreement must be understood as being included in the enterprise agreement because the term has some work to do. A term of any enterprise agreement must be understood as being included in the enterprise agreement because those negotiating or drafting or making the enterprise agreement considered it was necessary to put the term in the enterprise agreement.

[19] Enterprise agreements can contain terms which may range from terms which are merely aspirational through to terms which are absolutely mandatory but all terms form part of a package of terms that are intended to influence or regulate the industrial relations between an employer and its employees and sometimes the added relationships involving a union.

[20] In the context of the Agreement as a whole clause 12.6 should be understood as not only permitting the parties to consider a proposal but also to permit the parties to agree to an outcome, namely: that the payment of shift penalties for affected employees would be changed from payment on as an earned basis to payment of shift penalties on an averaging basis. To hold otherwise would render the consideration process futile. Given the emphasis on consultation and agreement within other terms of the Agreement, eg clause 7 then clause 12.6 should be understood as permitting an agreement to be made and implemented after the proposal has been considered.

[21] Both parties correctly identify that clause 12.6 can only operate to change payment of shift penalties from an as earned basis to an averaging basis if CSL and the employees requesting the change agree.

[22] The clause is clearly predicated upon the ability of CSL and employees to enter into an agreement to change the payment of shift penalties from an as earned basis to an averaging basis.

[23] What flows from this consideration of the effect of clause 12.6 is that both CSL and affected employees as referred to in clause 12.6 must have the ability to both consider the proposal and to make an agreement to change the method of payment of shift penalties.

[24] The contention of CSL is that it has made a decision to cease paying shift penalties on an averaging basis and that it is entitled to do so. The logic of the case presented by CSL is that whilst it has made a decision to remove the current payment of shift penalties on an averaging basis for those employees who are currently paid by that method CSL is also making clear to all other employees that it has made a decision that it no longer has the capacity to consider a proposal to pay shift penalties on an averaging basis and no longer has the capacity to reach agreement with any employees to pay those employees shift penalties on an averaging basis..

[25] As clause 12.6 is clearly predicated upon the ability of CSL and employees to enter into discussions and to make an agreement to change the payment of shift penalties from an as earned basis to an averaging basis what CSL is doing is to remove, at its own initiative, its ability to do those things.

[26] Given that CSL made the Agreement on the basis that it had the capacity to enter into discussions and to make an agreement to change the payment of shift penalties from an as earned basis to an averaging basis it would appear that CSL cannot now (during the life of the Agreement) unilaterally remove from itself that capacity.

[27] Any interpretation of clause 12.6 in the context of the Agreement as a whole “must not be interpreted in a vacuum divorced of industrial realities. 3

[28] The most obvious industrial realty in enterprise agreement making is that where an employer says before making an agreement with its employees that it has the capacity to do something referred to in the agreement then it intends that it has that capacity throughout the life of the agreement.

[29] As CSL made the Agreement with its employees on the basis that it had the capacity to consider a proposal that shift penalties be averaged over an agreed period, then it would be expected to retain that capacity for the life of the Agreement as far as it is able to do so.

[30] CSL cannot use an internal decision making process to remove its capacity to consider a proposal that shift penalties be averaged over an agreed period. Yet that is exactly what CSL has done.

[31] Just as clause 12.6 does not deal with the process for making an agreement to have shift penalties paid on an averaging basis instead of on an as earned basis the clause also does not deal with the termination of any agreement reached.

[32] There must be a process for the termination of any agreement reached as a result of discussions held under clause 12.6. The NUW contend that as agreement between CSL and affected employees is needed to introduce payment of shift penalties on an averaging basis then agreement between CSL and the same affected employees is required to terminate the arrangement. CSL contend that it is sufficient for them to give notice of decision to make the change and to consult with the employees about the change. CSL contend that it not necessary for there to be agreement from the affected employees before CSL can implement the change from paying shift penalties on an averaging basis back to paying shift penalties on an as earned basis.

[33] If an agreement to have shift penalties paid on an averaging basis instead of on an as earned basis was made after discussions under clause 12.6 then it would appear unexceptional if payment of shift penalties reverted back to payment on an as earned basis because of agreement between CSL and the affected employees. However, the language of clause 12.6 and the context of the Agreement does not permit an interpretation of clause 12.6 which would require that there must be agreement between CSL and affected employees before the payment of shift penalties could be reverted back to payment on as an earned basis. Equally, the language of clause 12.6 and the context of the Agreement does not permit an interpretation of clause 12.6 which would permit CSL to unilaterally change the payment of shift penalties from payment on an averaging basis to payment on an as earned basis.

[34] I do not consider that clause 7.1 of Part 1 of the Agreement (clause 7.1) assists or advances CSL’s position. Given that as CSL has identified, most employees are paid their shift penalties on an as earned basis the intention of CSL to move the remaining employees off a system of payment of shift penalties on an averaging basis and back to an as earned basis would not be major change of the type to which clause 7.1 is directed.

[35] Where an agreement to have shift penalties paid on an averaging basis instead of on an as earned basis was made after discussions under clause 12.6 then in the case of a dispute between CSL and the affected employees about the continuation of that arrangement or about an intention of CSL to terminate the arrangement the dispute would be one capable of resolution under clause 6 of Part 1 of the Agreement (clause 6).

[36] The dispute in this matter cannot be a dispute about the operation of clause 12.6 of the Agreement.

[37] Both the NUW and CSL agree that the employees subject of the dispute have been receiving payment of shift penalties on an averaging basis for some years and certainly from before the Agreement was made. Whilst I accept that clause 12.6 has been in previous enterprise agreements and whilst it is possible that the affected employees made an agreement with CSL under the terms of previous enterprise agreement to have shift penalties paid on an averaging basis that is not a dispute about the operation of clause 12.6 of the Agreement. That there is a dispute between the affected employees and CSL over the payment of shift penalties is not in question. It is just that it is not a dispute which flows from the operation of clause 12.6 of the Agreement. Nor is it a dispute that flows from the operation of clause 7.1 of the Agreement. There does not appear to be any other term of the Agreement which would relate to the payment of shift penalties on an averaging basis or on an as earned basis. Therefore the dispute in this matter is not a dispute in relation to a matter arising under this Agreement as required by clause 6 of the Agreement.

[38] Even though the matter in dispute may be a matter arising under the terms of a predecessor enterprise agreement the terms of the Agreement make it very clear that such a dispute cannot be dealt with under this Agreement. Clause 4 of the Agreement is explicit in this regard. Unlike some enterprise agreements this Agreement does not specifically preserve previously created benefits. Therefore an issue has to arise through the operation of a term of the Agreement before the issue can be dealt with under the disputes procedure of the Agreement.

[39] For the sake of completeness, I address the contentions of the parties as to the operation of clause 3 of Part 1 of the Agreement (clause3) the no extra claims clause.

[40] The NUW contend that clause 3 operates in relation to what CSL is seeking to do and that as a result of the breadth of language in clause 3 CSL cannot make a claim to remove from employees the current practice of paying some employees shift penalties on an averaging basis.

[41] CSL contend that clause 3 cannot be construed as preventing CSL from paying employees shift penalties on as an earned basis when “the parties have unequivocally agreed to those terms” and where the terms of the Agreement “expressly provide that CSL is able to pay ‘actual’ penalty rates”.

[42] There are fundamental flaws in the positions adopted by both CSL and the NUW and the authorities relied on by each party do not advance their respective cases.

[43] The contention of CSL that payment of shift penalties on an as earned basis is expressly provided for in the Agreement is not supported by the terms of the Agreement. The Agreement provides that shift workers will be paid the relevant penalty rate for shift work. However, how the payment is made is not dealt with by the Agreement. The Agreement does not expressly provide for payment of shift penalties on an as earned basis just as it does not expressly provide for the payment of shift penalties on an averaging basis.

[44] The contention of the NUW that the payment to some employees of shift penalties on an averaging basis is a condition of employment for those employees and cannot be changed because of the operation of clause 3 is not supported by the terms of the Agreement. As identified above the Agreement does not expressly provide for payment of shift penalties on an as earned basis just as it does not expressly provide for the payment of shift penalties on an averaging basis. The manner of payment of shift penalties, whether on an as earned basis or on an averaging basis, is primarily a matter of administration of the terms of the Agreement. The very presence of clause 12.6 infers that the usual manner of paying shift penalties is on an as earned basis but that the usual manner of paying shift penalties can be altered by agreement to payment on an averaging basis. The condition of employment that is caught by clause 3 is the requirement on CSL to pay the relevant shift penalties as set out in clause 12.2. The manner in which those shift penalties are paid is not a condition of employment caught by clause 3 of the Agreement.

Conclusion

[45] The above consideration of the matter before the Commission leads to several conclusions.

[46] Firstly, the dispute in this matter is not a dispute about a matter arising under this Agreement or in relation to the National Employment Standards.

[47] Secondly, the dispute, to the extent that it is about a matter arising under the terms of a predecessor enterprise agreement is not able to be dealt with under this Agreement because of clause 4.

[48] Thirdly, CSL cannot rely on clause 7.1 to remove payment of shift penalties on an averaging basis from those employees who are currently receiving it.

[49] Fourthly, it is a term of this Agreement that CSL is able to consider a proposal from affected employees that shift penalties be averaged over an agreed period. CSL cannot unilaterally withdraw its ability to consider a proposal from affected employees that shift penalties be averaged over an agreed period. Nor can CSL use its unilateral withdrawal of its ability to consider a clause 12.6 as a reason to remove the payment of shift penalties on an averaging basis from those employees current paid in that manner.

[50] Fifthly, the decision of CSL to cease paying affected employees shift penalties on an averaging basis and to pay those employees on an as earned basis does not constitute an extra claim for the purpose of clause 3 of the Agreement.

[51] Finally, it is clear that whilst the matter in dispute is not able to be resolved by the Commission under the terms of the Agreement it is also clear that CSL cannot unilaterally remove the payment of shift penalties on an averaging basis whilst clause 12.6 remains in the Agreement.

[52] An obvious solution to the dispute in this matter is that the parties negotiate and agree on a variation to the Agreement.

[53] The application in this matter is dismissed.

COMMISSIONER

 1   AMWU v Berri Pty Ltd [2017] FWCFB 3005.

 2   AMIEU v Golden Cockerel Pty Ltd, [2014] FWCFB 7447 at [41].

 3   City of Wanneroo v ASU, [2006] FCA 813 French J at 57.

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