National Union of Workers v Queensland Property Investments

[2013] FWC 6467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Union of Workers
v
Queensland Property Investments
(C2012/4002) (C2012/4004)

Storage services
COMMISSIONER CRIBB	MELBOURNE, 9 SEPTEMBER 2013

Alleged dispute concerning interpretation of 10.5 of the National Union of Workers - Queensland Property Investments Pty Ltd Hume Distribution Centre Enterprise Agreement 2010.

1. INTRODUCTION

[1] This decision concerns a dispute between the National Union of Workers (NUW) and Queensland Property Investments Pty Ltd (QPI, the company) over the interpretation of certain clauses of the National Union of Workers - Queensland Property Investments Pty Ltd Hume Distribution Centre Enterprise Agreement 2010 (2010 Agreement). The dispute is about the treatment of work performed at a particular time by employees at the company’s warehouse at Broadmeadows, Victoria (Hume DC). 1

[2] This work (the disputed work) is performed by employees between 12am (midnight) and 4am or 6am on:

The morning after each Sunday (ie. Monday), or

In a week in which a public holiday falls on a Monday, on the next day which is not a public holiday, or

In a week when Melbourne Cup Day falls or where Australia Day or Anzac Day fall on Tuesday to Thursday, the work is performed on the day following public holiday, or

Special arrangements over the Christmas/New Year period. 2

[3] Currently, this work is treated by QPI as Additional Hours for full time employees (clause 6.10) or Flex Up Hours/Additional Hours for part-time employees (clause 7). The company pays these employees the night shift loading for the duration of the work and casuals are paid ordinary time plus the night shift loading. 3 It is the union’s contention that the work is properly characterised as overtime and that it should be allocated and paid as such. The union also challenges the ability of the company to offer the work as Additional Hours or Flex Up Hours.4

2. QUESTION TO BE DETERMINED

[4] It was stated by the union that the question to be determined is whether, under the terms of the Agreement, the disputed work when performed after 12.30 am should be offered as Additional Hours (or Additional Hours or Flex Up Hours for part-time employees) or whether the work should be treated as overtime. 5

3. AGREED FACTS

[5] At the commencement of the hearing, the union provided an Agreed Statement of Facts 6 which had been agreed prior between the union and the company.

[6] The Agreed Statement of Facts is as follows:

“1. The respondent (“QPI”) operates a warehouse located at 120 Northcorp Boulevard, Broadmeadows, Victoria (“the Hume DC”).

2. Employees of QPI who work at the Hume DC are covered by the National Union of Workers – Queensland Property Investments Pty Ltd Hume distribution centre enterprise agreement 2010 (“the Agreement”).

3. QPR has had certain warehousing work performed between 12.00am and 6.00am on the morning directly after each Sunday (Monday morning) or, in a week in which a public holiday falls, on the morning after the public holiday, or the Monday morning, or both.

4. Permanent full time employees of QPI are offered the opportunity to perform this work as “Additional Hours” and permanent part-time employees are offered the opportunity to perform this work as “Additional Hours” or “Flex-up Hours”. These offers of work are made in accordance with the “Booking of Hours” system prescribed by clause 7 of the Agreement.

5. Permanent employees who perform this work as “Additional Hours” are paid the “Additional Hours” loading of 25 per cent plus the night shift loading of 35 per cent in addition to their “Base Hourly Rate of Pay”.

6. Permanent part-time employees who perform this work as “Flex-Up Hours” are paid the night shift loading of 35 per cent in addition to their “Base Hourly Rate of Pay”.

7. Casual employees who perform this work are paid a casual loading of 25 per cent plus the night shift loading of 35 per cent in addition to their “Base Hourly Rate of Pay”.”

4. SUBMISSIONS

(a) National Union of Workers

[7] It was submitted by the union that the first part of the disputed sentence in clause 10.5 of the Agreement does two things:

Mandates that work commencing prior to 6am, in the circumstance where the work is going into the day shift span, is treated as overtime. This was said to be consistent with the FWA recommendation in 2005 about certain shifts commencing at 4am or 5am.

Provides for ad hoc work after 12:30am. 7

[8] The union argued that the company’s construction of clause 10.5 of the Agreement means that “ad hoc work after 12:30am” has no work to do. This was said to be because the company says that ad hoc work is only work that occurs at very short notice and suddenly and so, therefore, it is treated as overtime e.g. an unplanned absence or a machine failure. It was the union's contention that the phrase “ad hoc work after 12.30am” deals with more than just work that is totally unplanned. 8 It was stated that the emphasis should not be on the suddenness of the work but on the particularity of the work. This was because any work that is suddenly required is, by its very nature, overtime as it cannot be additional hours as they have to be booked more than a week in advance. Therefore, it was said that “ad hoc work after 12:30am” will never have any work to do if it is based on suddenness as that will always be overtime.9

[9] The union relied on the definition of “ad hoc” in the Australian Concise Oxford Dictionary. This was said to be "for this special or particular purpose". Although it was said to be used clumsily in clause 10.5 of the Agreement, it was argued that, in the industrial context, “ad hoc work” can only mean work that is “special or particular” in relation to when it occurs or when it is required to be performed. This was in contrast with work that is performed for a special or particular purpose. Clause 10.5 was said to regulate what is and what is not overtime and is concerned with the time at which the work is performed and not the purpose of the work. Further, it was argued that the work is linked to a particular set of circumstances rather than to a particular day of the week. In this sense, it was argued that it is “particular or special” rather than ordinary. 10

[10] It was further submitted that, in addition to the contracted work (ordinary hours), there are particular hours (the disputed work) which are required to be worked at a very particular time or pattern. There were said to be some exceptions but that, over time, there is a pattern and it is very particular e.g. the morning after a Sunday or a Public Holiday or both and for a very particular or special-purpose - when there are high volumes e.g. Easter, New Year’s Eve. 11

[11] In terms of the relevant principles regarding interpretation of the terms of enterprise agreements, the Commission was referred to a Full Bench decision in Cape Australia Holdings Pty Ltd t/a Total Corrosion Pty Ltd v Construction, Forestry, Mining and Energy Union. 12 This decision was said to summarise the correct approach to the interpretation of agreements. On this basis, the union contended that the plain and ordinary meaning of clause 10.5 is that the disputed work, when it is worked after 12:30am, is to be treated as overtime.13

[12] Further, the union contended that one starts with the words and one also looks at the context. The test was also said to be an objective one and not a subjective one. It was stated that a great deal of the evidence went to what the parties wanted which was subjective and of no assistance in terms of the objective test. This evidence was described as part of the wider context but was said to be of no help regarding the objective construction of clause 10.5. 14

[13] With respect to the evidence in this regard, the union argued that:

The proposal from Mr Tzimokas, dated 2 November 2010, (from the NUW’s Facebook page), listed a number of matters but not clause 10.5 or how it should be interpreted. 15 Similarly, the Team Talk running sheet dated 27 September 2010.16

The without prejudice letter, dated 4 November 2010 together with two letters (dated 9 and 22 September 2010, provided to the NUW during the negotiations, did not go to the objective test. 17

[14] The NUW stated that the union’s and Ms Merner’s enterprise agreement drafts go to the context. However, reference was made by the union to draft 3 18 which has a clause 10.5 inserted which includes in Mr Soueid’s handwriting: “Note, this also includes all ad hoc work that occurs after 12:30pm and the above preference system...” The draft also had “Shift commencing prior to 6am will attract OT rates and finishing after 8am.”19 It was argued that this was consistent with the union’s argument that the sentence in question deals with two things - work before 6.00am (as in starting at 4.00am and going into day shift) or work commencing after 12:30am. Mr Soueid’s notes were said to clearly separate the two matters.20

[15] With respect to the next draft in Mr Soueid’s chronology, draft 4, 21 it was argued that the words provided for the time between 4am and 6am (if required to commence at 4am) to be paid as at night shift premium. “Night shift premium” was said to have been crossed out and replaced with “the equivalent OT rate”. Mr Soueid had then added “Any work commencing prior to 6am or ad hoc work after 12:30am will be treated as OT and work will be allocated following the preference hierarchy”.22 The fifth draft23 was said to be very similar to the current Agreement in that the first part is identical - “Any work commencing prior to 6am or ad hoc work after 12:30am will be treated as overtime”.24

[16] It was argued that these three drafts (3, 4 and 5) are the ones that dealt with the clause in question. The union stated that they show an objective intention to deal with ad hoc hours after 12:30am in a particular way and work before 6.00am in a particular way. The clause was said to be clearly designed to treat both things as overtime. 25 Further, it was contended that “ad hoc hours after 12:30am” must have a very particular meaning. The union argued that the purpose of those words is to make certain hours, that are ad hoc hours after 12:30am, overtime. This was because these hours are hours that are occurring for a very particular or special-purpose - consistent with the definition of ad hoc. If the disputed hours are not overtime, in accordance with clause 10.5, it was said that the union could not see what clause 10.5 would ever do.26

[17] With respect to the context within which clause 10.5 is to be interpreted, it was submitted by the union that:

There is no definition of “ad hoc” in the Agreement although there are definitions in the Agreement.

“Ad hoc” is used twice in another clause - clause 7.1(c). The union rejected the company's submission that the definition of ad hoc hours in clause 7.1(c) should be applied similarly to clause 10.5. It was argued that “ad hoc” in clause 7 defines ad hoc hours in terms of the booking system, whereas, clause 10.5 concerns ad hoc overtime hours. Further, the union stated that clause 7.1(c) expressly states that this does not apply to ad hoc overtime hours in clause 10.5. 27 Further, the union was of the view that the evidence did not show that the parties used the phrase “ad hoc” in a particular way during the course of the negotiations. There was said to be a lot of subjectivity attached to the phrase’s meaning in company documents. One would need to be careful about saying that the phrase had an agreed meaning during the negotiations and so therefore it is the agreed meaning in the Agreement.28

[18] A further relevant aspect of the context was argued to be the hours of work structure in the Agreement. It was stated that this was a day and afternoon shift arrangement for permanent employees with a handful of leading hands and a cleaning group who worked night shift. This was said to mean that, when clause 10.5 was agreed to, it was designed to deal with the hours that fell outside the ordinary hours of day/afternoon shift, namely, day shift commencing at 6am and afternoon shift finishing at 12.30am. This was stated to be consistent with clause 10.5 which talks about hours before 6.00am and hours after 12:30am. 29 With respect to whether or not there was a night shift being performed at the time of the negotiations, the union stated that the respondent's evidence was that Mr Soueid, the lead negotiator, did not know that that was happening. The union conceded that it goes to the wider industrial context but argued that it did not go to the objective meaning of clause 12.30

[19] In their submissions in reply, the union stated that the first night shift, according to Mr Johnson’s spreadsheet, was in the week ending 1 August 2010. As negotiations commenced on 4 August 2010, it was argued that it was not unusual that Mr Soueid was not aware of this as it represented a change and also, because it occurred shortly before the first negotiating meeting. 31 With respect to this night shift, the union contended that there is no evidence about to what extent it was known that the shift was occurring or what the union knew about the penalties that were being applied to that shift. Further, it was stated that what exactly, if anything, was discussed about the shift, during the negotiations, is unknown. The union submitted that the few grey things that are known on this subject does not assist any objective interpretation of clause 10.5.32

[20] It was not disputed by the union that, under the Agreement, Ordinary Hours could be worked on night shift and also Additional Hours on night shift. However, it was stated that the Agreement provides that Additional Hours can only be worked on the shift that the employee is contracted to perform. However, if those hours are ad hoc within the meaning of clause 10.5, they were said to be overtime. In addition, they are overtime as they are particular or special. 33

[21] The union submitted that another part of the context was that the Additional Hours booking system, that was introduced in this Agreement, was very different to what had applied in the previous agreements. This was said to be relevant on the basis that the whole system underpinning hours had changed significantly in the new (current) agreement. This means that, as there was no equivalent in the previous agreement, the previous agreement may not be of particular assistance. 34

[22] With respect to the company’s argument that the Agreement does not preclude the employer rostering an ordinary hours night shift, the union agreed that this was the case provided it is done in accordance with the rostering provisions. It was stated that ordinary hours can be worked between 12:30am and 6.00am as not all hours after 12:30am should be overtime, just the ad hoc hours. However, under the Agreement, all hours before 6.00am have to be overtime. 35 It was argued, further, that clause 6.1.2 - 6.1.4 preserve, to an extent, the existing shift structure (day/afternoon shift only) by providing expressly for it in clause 6.1.2. Departure from it was only allowed in certain circumstances in accordance with clauses 6.13 and 6.14. The union submitted that, when clauses 6.1.6(b)(ii) and 6.2.8(c)(ii) are read together with clauses 6.1.2 – 6.1.4, this shows that the parties, when the concept of Additional Hours was introduced into the Agreement, had the expectation that Additional Hours would be worked exclusively on day and afternoon shifts. This was on the basis that these were the only shifts being performed at the time the Agreement was made and that this structure was, in effect, largely preserved by the Agreement. Therefore, work performed outside of the day and afternoon shift span of hours would not be worked as Additional Hours but as overtime.36

[23] In terms of the company’s contention that the union’s definition is contrary to ordinary grammatical usage, it was argued that it was not the work itself that was ad hoc because the work is always the same. Rather it was when it was required to be performed which was ad hoc. 37

[24] It was submitted by the union that there was no explanation adopted by the parties in explaining to employees the intended effect of the 2010 Agreement. The union argued that what either the company or the union was seeking to achieve during the negotiations are subjective matters and not objective matters. 38

(b) Queensland Property Developments

[25] It was stated by Mr Jauncey that there did not appear to be any substantial dispute between the parties about the principles to be applied in the interpretation of clause 10.5 of the Agreement. However, he indicated that there may be some differences in emphasis. The Commission was taken to a number of authorities in this regard. 39

[26] With respect to the history behind the negotiations for the current enterprise agreement, it was said to be clear from the evidence of Mr Johnson that, at least from early 2000 to about March 2008, the company regularly engaged employees to work from 8.00pm on a Sunday evening to 4.00am on a Monday morning. The employees who worked this block of time were permanent employees for whom these were their ordinary hours, and also casuals. The permanent employees were paid at ordinary time night shift rates and the casuals were paid casual loading. No overtime was paid for this block of work - simply the appropriate penalties. 40

[27] Mr Johnson’s evidence was also said to have indicated that the working of this block of time was discontinued for a period of time. About 26 July 2010, the “midnight shift” was reintroduced in its current format ie. there was a block of work from 12 midnight (generally on a Sunday) to 4.00am or 6.00am which was paid at ordinary time rates plus shift loading (135%) or casual loading. 41 In addition, Mr Johnson had also explained that there were a small number of leading hands who worked from 10pm Sunday to 6am on Monday as part of their ordinary hours (contracted roster). These employees were said to have been paid the relevant night shift rates but not overtime. It was also Mr Johnson's evidence that, on occasion, a permanent employee was required to perform this work because of the lack of skills, and was paid overtime. In addition, an employee had commenced working an ordinary time Sunday night shift as a leading hand in July 2010.42

[28] It was stated that the reintroduction of this block of work from midnight to 4.00am or 6.00am commenced prior to the beginning of the negotiations for a new enterprise agreement in early August 2010. The company was said to have never sought to hide the fact that this was occurring. Rather, during the negotiations, it was indicated that the company had specifically raised a proposal to insert provisions in the new Agreement which would amend the way that block of time was worked. Specifically, the company had proposed that the block of time be worked from 11.00pm on Sunday night to 5.00am on Monday morning. The period from 11.00pm to midnight on a Sunday was to be paid at 135% rather than having to pay 205% for that first hour which was the rate for any night shift work during the 24 hours of an actual Sunday. 43

[29] The company explained that it had provided a document to the union, on 9 September 2010, which said that it wanted the Sunday night shift to commence at 11pm. 44 A further document45 was provided on 22 September 2010 which referred to part-time employees working from 11.00pm Sunday to 5.00am on Monday. This was said to be consistent with the practice which was occurring in relation to the block of time from midnight which part-time employees (under the old agreement) could flex up and work. The block of time (from 11.00pm Sunday to 5.00am Monday) was said to have been described as a shift in the documentation and the payment of 135% was also stipulated. Mr Johnson’s evidence was also said to indicate that, during the Team Talks held in the week commencing 27 September 2010, the company informed a large number of employees of its proposal regarding that block of time.46

[30] It was argued that, up until this stage, no one had raised any issues about that block of time being worked as overtime. Rather, the company was seeking to change that block of time in a way that generated efficiencies but at the same cost. Mr Jauncey stated that the company was clearly proposing that the work be ordinary time and paid at ordinary time rates. It was said that the union was clearly aware of the company’s proposals irrespective of whether or not Mr Soueid knew that this block of time was being worked. Further, it was contended that a large number of employees were aware of this work. These included the afternoon shift employees who handed over at changeover. Also, when they walked out to the car park, they would have seen, from the end of July 2010 onwards, a large number of cars which had not previously been there. As well, it was argued that, as the block of work commonly ended at 6.00am which was the commencement of the day shift, the day shift employees would have become aware at changeover. 47

[31] The union’s awareness of the proposal was said to have set the context for their flyer 48 which had been issued in late September 2010 or early October 2010. In this document, it was stated that the union had referred to the block of work as “night shift Sunday”. The company argued that the term “shift” was therefore being used by both themselves and the union at that time. It was indicated that, by the time that this flyer was issued, the block of time had been worked for over two months. Further, it was contended that the union’s issues with the company’s proposal were not that it should be worked as overtime. Rather, the union was said to have been concerned about the company seeking to move the shift forward to get the first hour of the block of work paid at the Monday to Friday night shift rate rather than at the Sunday rate.49

[32] Mr Soueid's evidence was said to have been that he had raised this issue at the meeting on 2 November 2010. He was allegedly told by Mr Tzimokas that the company was not planning to have any scheduled work done between 12:30am and 6am and that the company had no problems with it being paid as overtime. Mr Jauncey contended that Mr Soueid's evidence should not be accepted on the basis that he was reconstructing events in his mind in a way that is factually mistaken. Ms Merner was said to have not heard those comments by Mr Tzimokas and that she would have been surprised. This was because the block of work had been worked now for three months and the company intended to continue doing so. Further, the assertion about Mr Tzimokas’ comments was not contained in Mr Soueid’s statement but was proffered during cross examination. 50

[33] In addition, the company argued that the union was provided, on 3 November 2010, with a document setting out the company’s position. Mr Jauncey addressed the version with the additional dot point and Mr Tzimokas’ sign off block 51 which was posted on the website. In this document, it was stated that the company specifically said that it wanted agency casuals to fill all ad hoc hours; night shift penalties to remain for night shift (now finishing after 12:30am) and casuals to be paid at day shift rates between the span of hours (6.00am to 8.00pm) and shift loadings to apply for hours outside of that. It was contended that the only persons who were being paid night shift penalty rates at the time were those working the block of time (the midnight shift). As well, it was asserted that there was nothing in this document which suggested that the company had agreed to changing the working arrangements so that the block of time between 12:30am and 6.00am would be paid at overtime rates.52

[34] With respect to the letter 53 to the union, dated 4 November 2010 from the company to the union, it was described as constituting an in-principle agreement between the parties. Mr Soueid’s suggestion that the letter did not reflect what was ultimately agreed was discussed in the context of the various drafts.54 In terms of each of the drafts, the following contentions were put:

Draft 1 55 - approximately 15 November 2010 - clause 6.2.9 contains the proposed booking priority system which is the same as contained in the 4 November 2010 letter. There was evidence of subsequent negotiations over this issue in mid to late November 2010. After the in-principle agreement was reached, there was further negotiation as to where full-time employees sat in the priority list. Clause 6.2.9 provided that “Any daily or ad hoc hours – that is, hours not booked in the preceding week – that arise will be worked by indirect casuals”. It was stated that, from the first draft agreement, there were specific provisions where “ad hoc” was being used in a very specific way which was linked with daily hours that arise after the booking system has closed. At this stage, the overtime clause had overtime payable if an employee was directed to do it.56

Draft 2 57 - around 26 November 2010 – it still contains the existing booking priority system which was said to support Ms Merner’s evidence that these issues were being negotiated separately outside the in-principle agreement.58

Draft 3 59 - full-timers have been moved up to be, along with part-timers, first in terms of booking additional hours. The company agreed with the union that the parties were grappling with two different issues - what happens if hours arise at short notice after the booking system has closed and what should happens if someone comes in at 4.00am and these hours connect onto day shift. It was stated that, with respect to the 4.00am start issue, the company believed they should be Additional Hours whilst the union was relying on the FWA recommendation.60 Reference was made to Mr Soueid’s handwritten entries on the draft which were said to indicate that he was drawing a distinction between what is ad hoc work and what is work more broadly. It was explained that Mr Soueid seemed to have an understanding that a casual employee working after 12:30am will get night shift loading on all hours worked and that he was using “ad hoc” as a subset of work - reduced and limited. In addition, the company argued that, at this point in time, the draft was providing that, any work that comes up after the booking system closes, will go straight to indirect casuals. There was therefore no equivalent to what became clause 7.1(a)(iii) of the final document which provides for a permanent employee to be paid overtime in these circumstances.61

Draft 4 62 - approximately 9 December 2010 - clause 7 still referred to ad hoc hours being made available to direct employees prior to indirect labour. The use of ad hoc was said to refer to hours which were not booked or were not put through the booking system. In this situation, permanents, then company casuals, then indirect casuals will be given the opportunity to work these hours. Also, in this draft, the company’s proposal about the work prior to 6am being Additional Hours was said to be first included.63

Draft 5 64 - Mr Soueid was said to have produced a note where he is again talking about work prior to 6.00am with ad hoc work after 12:30am. These words were stated to have been broadly inserted into clause 10.5. In terms of the union’s contention that, on the company’s interpretation, the words “ad hoc work after 12:30am” had no work to do, it was argued that, in this draft, the parties are grappling with what should happen if permanents do the short notice hours. It was stated that there is nothing that says they will be paid overtime or that they would be given to permanents first. The words were said to have gone into clause 10.5 at a time when they did have work to do. It was argued that it was only in later documents (draft 7) that clause 7.1(a)(iii) was inserted to do the same thing for permanents who do short notice work at other times of the day. Therefore, the company submitted that that phrase was put into the Agreement at a time when it did have work to do. However, the rest of the Agreement then caught up with that clause for work at other times.65

[35] The company submitted that the whole history suggests that there was never any intention that work after 12:30am needed to be paid as overtime unless it was work which arose at short notice after the booking system had closed. This was said to be how the word “ad hoc” was being used. 66

[36] With respect to the definition of “ad hoc”, it was contended that it was being used as an adjective in clause 10.5 to describe the work or hours. On the basis of various dictionary definitions, the company argued that the word was being used to mean “impromptu, improvised; arising at the last minute.” It was asserted that the union had conceded that the work is not for a special purpose as all of the work is the same but that they were arguing that it is at a particular time. It was stated that the way in which the term was being used (referring to “impromptu or improvised” work) is consistent with the idea that it is being used in a specialist way to describe work that arises after the booking system closes. It gives employees another option - short notice work. 67

[37] The company contended that this usage is consistent with clause 6.2.7(c) of the previous agreement. It was Mr Johnson’s evidence that, prior to the negotiations commencing, “ad hoc hours” were those that came up on a short notice basis. Reference was made to the Consultative Committee minutes where there was reference to hours that may come up “on an ad hoc basis”. 68 “Ad hoc” was also said to have been used in the 3 November 2010 document and the 4 November 2010 letter69 where it was given a specific meaning – hours not booked as part of the booking system. It was said to have been intended to cover hours (ad hoc) which have not been booked at the time the booking system finishes or they have arisen after the booking system finishes. This specific meaning for ad hoc was stated to have formed the basis of the in-principle agreement. Further, it was argued that the phrase "ad hoc hours" was then used consistently in the Agreement to refer to hours not pre-booked, as it had been since the first draft. The company submitted that this was entirely consistent with the dictionary definition and what the parties were trying to do. This was described as making sure that the permanent employees had another option of hours that might come out after the booking system has closed which they might otherwise miss out on. It was recalled that the original proposal was that all of these hours should go straight to indirect casuals.70

[38] It was submitted that Mr Soueid and the union had put forward different approaches to what “ad hoc” means. The company recalled that Mr Soueid had suggested that “ad hoc” meant any hours that did not form part of a permanent employee’s contracted hours. This was said to mean that any Additional Hours and any overtime were ad hoc hours which would result in any extra work being given to indirect casuals first. It was stated that what the parties were saying was that indirect casuals would be given what was left over after the booking system - the work that is “impromptu and arising at the exigencies of the moment”. 71

[39] On the other hand, the union was said to have suggested a different definition - that ad hoc means hours that are done at an unusual time or at a time when not many other employees are working. The union had indicated that it does not mean impromptu or for a special or particular purpose as the work is all the same. However, it was stated to mean that it is of a special or particular type. The company argued that this was going beyond the dictionary definition in that work of a particular type is not ad hoc. Rather, ad hoc was said to mean impromptu/short notice nature of it. 72

[40] The union’s concession that it is possible for a contracted night shift employee to work additional hours after 12:30am was characterised as fact. Further, the company argued that it was logical for additional hours to suddenly become ad hoc (overtime) hours if they are declined by the permanent employees and are then offered to the casuals (the union's argument). It was stated that the hours are either ad hoc or they are not. 73

[41] The other illogicality on the part of the union was said to be the statement that the half-hour from midnight to 12:30am could be offered as Additional Hours or offered to casuals. The company’s first issue with this was that the half-hour in question is now entirely within the afternoon shift spread - which would attract the afternoon shift penalty. Secondly, it was explained that the company would have to put that half hour through the booking process with the subsequent 3.5 hours through the overtime process. It was contended that, if an employee accepted the half an hour, they would also want the remaining hours. The idea that this was ever the intention of the parties was said to be incapable of withstanding scrutiny. Further, the company argued that an objective assessment of the interpretation of the clause requires one to look, in context, at what one party, by its words and conduct, encouraged another party to believe. 74

[42] The company submitted that it had been entirely consistent in terms of the viewpoint it had put forward throughout the whole negotiation process. This was described as the hours from midnight and 6.00am being able to be picked up as Additional Hours or casual hours and that employees can book the midnight shift as Additional Hours, Flex Up hours or casual hours. 75

[43] Finally, it was contended that the union’s submission requires the Commission to read the expression “ad hoc” in clause 10.5 in a completely different manner to clause 7 where it appears three times. This was said to be contrary to the principle of interpretation that words and phrases should be given a consistent meaning in a single document unless the context compels otherwise. It was argued that the definition of “ad hoc” as proposed by the company is entirely consistent with the history of its usage by the parties and the English language. 76

5. CONSIDERATIONS AND CONCLUSION

[44] There is a dispute between the union and the company about how the disputed work (block of work), that generally commences on a Monday at 12.30am and finishes at 4.00am or 6.00am, should be treated.

[45] The union contends that this work is “ad hoc work after 12.30am” and so should be treated in accordance with clause 10.5 of the Agreement.

[46] On the other hand, the company argues that the disputed work is not ad hoc (unplanned) work and that it is Additional Hours or Flex-up hours as the Agreement specifically permits Additional Hours and Flex-up hours to be worked at this time.

(a) Terms of the Agreement

[47] The relevant terms of the Agreement are:

4. DEFINITIONS

4.1 Weekly employee means a full-time or part-time employee.

4.2 Full-time employee, means a weekly employee who works thirty-eight (38) hours each week:

(a) on the basis of four x 9.5 hour shifts; or

(b) as otherwise agreed between the Company and an individual employee.

4.3 Part-time employee, means a weekly employee who works a contracted work roster of between sixteen (16) and thirty-four (34) hours per week. Part-time employees accrue entitlements on a proportionate basis, based on their contracted work roster and "Flex Up Hours" up to a maximum of 38 hours.

4.4 Casual employee, means a non-weekly employee who is ready, willing and available to work the hours required by the Company, at call. A casual employee may have their hours rostered for the convenience of operational and employee planning.

4.5 Fixed term (temporary) employee, means an employee engaged as a specific full-time or part-time employee for a specified time (with a written commencement/cessation date specified prior to commencement of employment). This definition may apply to new or existing part-time and casual employees taking up a full-time relief. Such employees may be engaged to perform seasonal work for between three (3) and six (6) months. Where such employees are engaged to cover scheduled employee leave of absence, the engagement period will be for the period of the absence, with a minimum of (4) weeks and a maximum of fifty two (52) weeks.

4.6 "Base Hourly Rate of Pay" means the weekly wage rate prescribed at clause 3.1 of this

Agreement for a particular level divided by thirty eight.

4.7 A "week" is defined as Monday to Sunday, both days inclusive.

4.8 A "contracted work roster" means the contracted hours a full-time or pat1-time employee is rostered to work on any day, or combination of days, during the week and includes the employee's start/finish times and whether the employee is engaged on day shift, afternoon shift or night shift. A full-time or part-time employee's contracted work roster does not include any "Flex-Up Hours", "Additional Hours" or overtime hours worked by the employee.

4.9 "Flex-Up Hours" means hours that are worked by part-time employees above their contracted work roster in accordance with clause 6.2.7(a) of this Agreement. Flex-Up Hours do not form part of a part-time employee's contracted work roster. A part-time employee's entitlement to accrued leave will accrue based on their contracted work roster and Flex-Up hours.

4.10 "Additional Hours" means hours requested and worked by:

(a) a part time employee above their contracted work roster and "Flex Up Hours" (in accordance with clause 6.2.8 (b) of this Agreement);

(b) a full time employee above their contracted work roster in accordance with clause 6.1.6 of this Agreement.

These "Additional Hours" will be paid at the employee's Base Hourly Rate of Pay for the level of the function that is being performed plus a loading of twenty five (25) per cent plus shift loading where applicable.

"Additional Hours" are not taken into account to determine any other entitlements for an employee, such as annual leave and personal leave. However, "Additional Hours" will be taken into account for the purposes of determining an employee's OTE, as noted in clause 19.1 of this Agreement.

4.11 A "day" means the twenty-four (24) hours from 0000 hours to 2400 hours.

4.12 "Probationary employment period" means the first three (3) months of employment, where termination of employment may take place by either party by the giving of one week's notice (or payment in lieu or forfeit there of).

4.13 "Continuous service" means a continuous period of service with the Company which is deemed to be unbroken notwithstanding:-

(a) Any annual leave, long service leave or paid personal leave taken during that period;

(b) Any interruption or ending of the employment by the Company and such action is taken with the intention of avoiding obligations in respect of annual leave, long service leave and paid personal leave;

(c) Any absence on account of leave, other than annual leave, long service leave or paid personal leave, granted, imposed or agreed to by the Company;

(d) Any absence on any other account not involving termination of employment;

and in calculating a year of employment, any absence of a kind mentioned in paragraphs (a) or (b) above, shall be counted as part of the year of employment. Absences of a kind mentioned in paragraphs (c) or (d) above, will not be counted and it will be necessary for the employee to serve an additional period that equals the period of absences, for the purposes of entitlements accruals.

4.14 "Rostered Day Off' (RDO) means the day off work accrued arising from a full time employee working their contracted work roster on a nineteen (19) day four (4) week cycle to an average of 38 hours. To avoid any doubt, a full time employee working a four x 9.5 shift roster cycle is not entitled to a ROO.

4.15 "Non-rostered working day" (N.R.W.D) means a day the employee is not rostered to work contracted hours.

4.16 "Preference Hierarchy" means the following hierarchy, unless otherwise specified in this Agreement:

(a) Full-time employees;

(b) Part-time employees;

(d) Indirect casuals.

4.17 "Premium days" - Saturday and Sunday are considered premium days for the purpose of this Agreement.

4.18 "Agreement" means this Enterprise Agreement.

4.19 "Approval Date" means the date seven days after this Agreement is approved by FWA.

4.20 "FWA" means Fair Work Australia.

4.21 "FW Act" means the Fair Work Act 2009, as amended from time to time.

4.22 "NES" means the National Employment Standards, as in operation under the FW Act from I January 2010.

...

6. EMPLOYMENT STATUS

6.1 Full-time employees

6.1.1 A full-time employee:

(a) works thirty eight (38) contracted hours, which may be averaged over a four (4)

week cycle; and

(b) whose contracted work roster includes a weekend day(s), and where their roster includes provision for an ROO, will be placed on a rolling RDO; and

6.1.2 From the commencement of this Agreement, full-time employees will be required to:

(a) work 9.5 hours, on a four day working week on the basis of:

(i) commencing at 6.00 am and finishing at 4.00 pm for day shift; and

(ii) commencing at 3.00 pm and finishing at 12.30 am for afternoon shift;

(b) work in a manner different from clause 6.1.2(a) if the Company and an individual employee otherwise agree and subject to clauses 8.1, 8.3 and 8.4.

6.1.3 From 1st January 2011, full-time employees employed by the Company as at the commencement date of this Agreement will not be required to make roster or shift changes other than with the individual's agreement for a period of six months. From

!"July 2011 clause 6.1.4 will apply.

6.1.4 From 1st July 2011, the following provisions will apply to changes of contracted work rosters:

(a) The Company will not move permanent afternoon shift employees into another shift without the individual's agreement;

(b) It is not the Company’s intent to change a full-time employee’s contracted work roster more than once a year. However, when making changes, the Company will be mindful of the full-time employee's circumstances, including family responsibilities, individual travel arrangements, financial hardship, secondary and tertiary study commitments and religious observance and will endeavour to minimise impacts where possible;

(i) Upon not less than 14 days' notice, or

(ii) Earlier by agreement between the employee and the Company.

(d) Should a full-time employee disagree with any roster change, they shall be given 14 days' notice during which time there shall be discussions aimed at resolving the matter in accordance with the Dispute Resolution Procedure to ensure that procedural fairness will occur.

6.1.5 The maximum daily contracted work roster will be 9.5 hours exclusive of unpaid breaks and the minimum daily contracted work roster will be eight (8) hours.

6.1.6 Additional Hours

(a) Where the work is available, full time employees can request and work up to a maximum of 10.5 hours above thirty eight (38) contracted hours per week ("Additional Hours").

(b) "Additional Hours":

(i) will be paid at the employee's Base Hourly Rate of Pay for the level of the function being performed plus a loading of twenty five per cent (25%) per hour. The loading is being paid to an employee in lieu of any other entitlements otherwise associated with working the "Additional Hours". Applicable shift loading will also apply to "Additional Hours" as per clause 6.1.6(c) and 6.1.6(d);

(ii) can be worked Monday to Friday on the same shift as the full time employee's contracted shift unless the "Additional Hours" are "Weekend Additional Hours". However, this clause will be reviewed and may change depending on the agreed outcomes of the quarterly review meeting referred to at clause 34 of this Agreement;

(iii) can be worked during a weekend ("Weekend Additional Hours") on any shift;

(iv) will not be counted, nor treated, as overtime hours for the purposes of this Agreement.

(c) "Additional Hours" for full time employees will only attract the afternoon shift loading on "Additional Hours" worked within that afternoon shift. For example, should a full time employee work "Additional Hours" that go across day shift and afternoon shift, the employee will only receive the shift penalty for the "Additional Hours" worked after 8pm. "Additional Hours" worked prior to 8pm will not attract the afternoon shift loading.

(d) "Additional Hours" for full time employees working later than 12.30am will attract night shift loading for all hours worked in lieu of the afternoon shift loading where applicable.

(e) At the time of booking "Additional Hours", full time employees can elect to bank the "Additional Hours" worked. However, the full time employee can only elect to bank as time in lieu:

(i) 9.5 hours shift; and

(ii) on no more than 4 occasions;

in any anniversary wage year (Banked Hours).

The booking process for time in lieu specified above may change subject to agreed outcomes of the quarterly review meeting, referred to at clause 34 of this Agreement.

(f) The taking of time in lieu of Banked Hours can be taken on any day of the employee's contracted work roster. The Banked Hours taken will be paid at the rate of earning as stated in clause 6.1.6(b) and clause 6.1.6(c) only.

(g) Time in lieu for Banked Hours may be held until the wage increase anniversary of this Agreement, in the following year. Any unused Banked Hours will be paid out immediately preceding this Agreement's wage increase anniversary. The Banked Hours not used or taken will be paid out at the rate of earning as stated in clause 6.1.6(b) and clause 6.1.6(c).

6.1.7 Full time employees can only work a maximum of six (6) days per week including "Additional Hours".

6.1.8 Transfer by existing full time employees

(a) No existing full time employees will be transferred to part time employment without the written consent of the employee concerned.

(b) The Company must not terminate the employment of a full time employee with the intention of re-employing him or her as a part time employee.

(c) A full time employee will be permitted to convert to part time employment by agreement in writing with the Company. An employee may transfer back to full time employment by agreement with the Company and such transfer must be recorded in writing.

(d) Employment will be deemed to be continuous for annual leave, long service leave, personal leave and service award purposes.

(e) Future entitlements, after the date of transfer, will accrue on a pro-rata basis in accordance with the terms of this Agreement.

6.2 Part-time employees

6.2.1 Part-time employees may have their contracted work roster spread over a four (4) week cycle, in accordance with a regular pattern.

6.2.2 The daily minimum contracted work roster for a part-time employee will be four (4) hours and the maximum daily contracted work roster will be 9.5 hours exclusive of unpaid breaks.

6.2.3 The weekly minimum contracted work roster for a part-time employee will be sixteen (16) hours and the maximum weekly contracted work roster will be thirty four (34) hours per week.

6.2.4 A part time employee's contracted work roster may be varied by the giving of fourteen (14) days notice in writing of such change, or less than fourteen (14) days notice where it is agreed between the part time employee and the Company.

...

6.2.7 Flex-up

(a) Flex Up Hours

"Flex Up Hours" is defined at clause 4.9 of this Agreement.

A part time employee's working hours may be increased (flexed-up) above their contracted work roster by request and where hours are available to a maximum of thirty eight (38) hours per week. Such "Flex Up Hours" will be paid at the employee's Base Hourly Rate of Pay plus any applicable shift loading.

Part time employees are eligible to book any "Flex Up Hours" available in the booking system across any shift.

"Flex Up Hours" will attract the appropriate shift loading for the entire shift worked. For example, should a part time employee commence a "Flex Up Hours" shift at 4 pm and finish after 8 pm, all hours worked from 4 pm will attract the afternoon shift loading

(b) Cancellation of Flex Up Hours

The Company may be required to cancel a part time employee's "Flex Up Hours" under exceptional circumstances. Examples of exceptional circumstances include:

• Issues with supply that are outside the Company's control, including as a result of industrial action taken by a supplier's employees;

• Major power outage;

• Natural disasters, including significant floods and/or significant damage to site.

In such instances, the cancellation of "Additional Hours" and "Flex Up Hours" procedure detailed at clause 7.2 will be followed.

Prior to the cancellation of "Flex Up Hours", all "Additional Hours” and casual hours must be cancelled as per clause 7.2 of this Agreement.

Part time employees who have had their "Flex Up Hours" cancelled in accordance with the terms of this Agreement, will be given the first opportunity to access more hours when they become available.

6.2.8 Additional Honrs

(a) "Additional Hours" is defined at clause 4.10 of this Agreement.

(b) Where the work is available, and after a part time employee has flexed up to thirty eight (38) hours per week, they can request and work an additional maximum of

4.5 hours per week ("Additional Hours").

(ii) can be worked Monday to Friday on the same shift as the part time employee's contracted shift unless the "Additional Hours" are "Weekend Additional Hours". However, this clause will be reviewed and may change depending on the agreed outcomes of the quarterly review meeting referred to at clause 34 of this Agreement;

(iii) can be worked during a weekend (''Weekend Additional Hours") on any shift;

(iv) will not be counted, nor treated, as overtime hours for the purposes of this Agreement.

(d) "Additional Hours" for part time employees will only attract the afternoon shift loading on "Additional Hours" worked within that afternoon shift. For example, should a part time employee work "Additional Hours" that go across day shift and afternoon shift, the employee will only receive the shift penalty for the "Additional Hours" worked after 8pm. "Additional Hours" worked prior to 8pm will not attract the afternoon shift loading.

(e) "Additional Hours" for "part time" employees working later than 12.30am will attract night shift loading for all hours worked in lieu of the afternoon shift loading where applicable.

...

10. OVERTIME

10.1 Full-time and Part time employees- Day Shift

(i) Subject to clause IO.l(ii) and IO.I(iii), a full-time or part time employee who the Company requires to work hours in addition to their contracted work roster, "Flex Up Hours" or booked "Additional Hours", will be paid overtime at the rate of 150% for the first two (2) hours and 200% thereafter, at the Base Hourly Rate of Pay exclusive of any other loadings;

(ii) "Additional Hours" worked by full time and part time employees above their work roster will not attract overtime payments;

(iii) Full-time and part time employees whose contracted work roster includes a Saturday and/or Sunday, shall be paid 200% for all overtime hours worked on a Saturday and/or Sunday.

10.2 Full Time and Part time employees- Afternoon Shift and Night shift

Shift work employees who work overtime will have the overtime loading added to their shift loading, this means:

Afternoon shift

(i) Subject to clause I 0.2(ii) and I 0.2(v) a full time or part time afternoon shift employee who the Company requires to work hours in addition to their contracted work roster, "Flex Up Hours" or booked "Additional Hours", will be paid overtime at the rate of 180% for the first two (2) hours and 230% thereafter, at the Base Hourly Rate of Pay exclusive of any other loading;

(ii) Full time and part time afternoon shift employees whose contracted work roster includes a Saturday and/or Sunday will be paid 230% for all overtime hours worked on a Saturday or Sunday.

Night shift

(iii) Subject to clause 10.2(iv) and 10.2(v) a full time or part time night shift employee who the Company requires to work hours in addition to their contracted work roster, "Flex Up Hours" or booked "Additional Hours" will be paid the overtime rate of 185% for the first two (2) hours and 235% thereafter, at the Base Hourly Rate of Pay exclusive of any other loadings.

(iv) Full time and part time night shift employees whose contracted work roster includes a Saturday and/or Sunday will be paid 235% for all overtime hours worked on a Saturday or Sunday.

Additional Hours

(v) "Additional Hours" worked by full time and part time employees above their contracted work roster will not attract overtime payments.

10.3 Casual employees

Casual employees will be entitled to overtime when working in excess of the daily maximum hours of (9.5) exclusive of unpaid breaks or in excess of the weekly maximum hours (40).

Casual employees will receive the appropriate overtime rate for the shift the casual is working, calculated as at the commencement of overtime as stated in clause 10.1 and 10.2. Casual employees will not be entitled to the casual loading.

10.4 Reasonable overtime

The Company may require an employee to work reasonable overtime at overtime rates, to meet the needs of the business. The minimum overtime payment for overtime not attached to an employee's contracted hours is four (4) hours.

10.5 Overtime preference

If the Company requires overtime to be performed, the preference for distribution of overtime will be based on the Preference Hierarchy and job function required.

Any work commencing prior to 6am or ad hoc work after 12.30am will be treated as overtime and work will be allocated based on the Preference Hierarchy and the function required.

(b) Principles applying to the interpretation of enterprise agreements

[48] Both the union and the company took the Commission to a number of authorities regarding the applicable principles for the interpretation of agreements. It was indicated that they held a common view as to the relevant principles. It is noted that Mr Jauncey indicated that the parties may place a different emphasis on the principles. In dealing with this matter, I have adopted the general approach to the construction of enterprise agreements. This was most recently set out in the Full Bench decision in Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union. 77

(c) The text of the Agreement

[49] The Overtime Preference clause and the Additional Hours clauses for full-time and part-time employees sit within the context of an Agreement where a full-time employee works 38 contracted hours (clause 6.1.1(a)). The Agreement contains an Hours of Work clause (clause 8) which provides for day shift, afternoon and night shift. However, clause 6.1.2(a) provides that, from the commencement of the Agreement, a full-time employee will be required to work day shift and afternoon shift. It does not require employees to work night shift. Therefore, it is my view that the Additional Hours clauses and the Overtime Preference clause sit within the context of a day and afternoon shift only operation. The day shift hours for a full-time employee are from 6.00am to 4.00pm (clause 6.1.2(a)(ii)). The afternoon shift commences at 3.00pm and finishes at 12.30am (clause 6.1.2(a)(ii)).

[50] For a part-time employee, they work their contracted hours over a 4 week spread in a regular pattern (clause 6.2.1). Although it is not specified in the Agreement, it is presumed that a part-time employee’s contracted hours will be worked within the day/afternoon shift pattern. In addition to their contracted hours, the Agreement provides for Flex Up hours for part-time employees (clause 6.2.7(a)). A part-time employee may request an increase in hours above their contracted hours, up to a maximum of 38 hours per week. These hours are available for a part-time employee in the booking system across any shift. Again, as employees are only required to work day and afternoon shift, it is presumed that Flex Up hours are similarly available to a part-time employee on day and afternoon shifts only.

[51] In addition, clause 7.1(a)(iii) states that any hours that do not form part of a permanent employee’s contracted work roster (full-time or part-time) and have not been booked on Monday in the preceding week will be treated as overtime.

[52] With respect to casual employees, the Agreement permits a casual employee to work a maximum of 40 hours per week (clause 6.3.1). If a casual employee works on a shift that attracts a casual loading, they are paid the applicable shift loading in addition to the casual loading (clause 6.3.4).

[53] The Agreement also provides for a Booking of Hours system for Flex Up, Additional and Casual Hours. The company makes available all possible known Flex Up Hours and Additional Hours, and Casual Hours on the preceding Monday and Wednesday (casual hours) (clause 7(a) and (b)). For full-time and part-time employees, all possible known hours ie. between 6.00am to 8.00pm and 3.00pm to 12.30am, are offered (clause 7(b)(i)). For casual employees booking shifts commencing at 4.00pm, access will be given to book continuous hours in that shift to after 8.00pm if the work permits and will not be displaced by other casuals at 8.00pm (clause 7(b)(iii)).

[54] Clause 7.1(c) of the Agreement states that, if any ad hoc hours (that is hours not booked prior by company casual employees) arise, they will be filled by indirect casuals. This does not include ad hoc overtime (clause 10.5). In the Note underneath clause 7.1, it is stated that one of the intentions in making these arrangements is to ensure that all ad hoc hours are made available to direct employees in the first instance.

[55] It is within the context of these clauses, in particular, in the Agreement, that the disputed clauses sit. The disputed clauses clauses are:

(i) Additional Hours clauses

[56] The Additional Hours provisions are in essentially the same terms for full-time employees and part-time employees. For ease of reference, I will focus on those for full-time employees. Additional Hours are accessible for full-time employees over and above their 38 contracted hours per week (clause 6.1.6(a)). For part-time employees, these can be requested after they have flexed up to 38 hours per week (clause 6.2.8(b)). The Additional Hours are paid at +25% of the base hourly rate of pay and the applicable shift penalty also applies (clause 6.1.6(b)(i)). They can be worked on the same shift as the full-time employee’s contracted shift. If the Additional Hours are on a weekend, they can be worked on any shift (clause 6.1.6(b)(ii) and (iii)). These hours will not be counted nor treated as overtime hours (clause 6.1.6(b)(iv)). Additional Hours for employees working later than 12.30am will attract the night shift loading (clause 6.1.6(d)).

(ii) Overtime Preference clause

[57] The first paragraph of clause 10.5 indicates that, if the Company requires overtime to be performed, it will be distributed on the basis of the Preference Hierarchy and the job function required. The second paragraph states that any work commencing prior to 6.00am or ad hoc work after 12.30am will be treated as overtime and will be allocated on the same basis as overtime generally.

(d) The context

[58] There was a significant amount of witness evidence on behalf of the parties as to the intentions of the parties during the negotiations and the background and history of the 2010 Agreement as well as the preceding Agreement (National Union of Workers - Queensland Property Investments Pty Ltd Hume Distribution Centre Enterprise Agreement 2005 - 2008). Mr Soueid’s evidence was that, at the time of the negotiations, neither he, the union or the other delegates were aware that there was a night shift (midnight Sunday to 4.00am or 6.00am on Monday) in operation. Further, he said that they were not aware of the proposed arrangements in relation to Additional Hours and Flex Up hours. He recalled a conversation with the Logistics Manager who had told him that work would be between 6.00am and 12.30am with anything else being overtime. 78 Mr Soueid also said that the booking system was introduced to ensure that permanent employees got preferential treatment in relation to Additional Hours - within the normal span of hours (6.00am - 12.30am).79 He explained that they agreed to increase the span of hours by two hours so that work could be undertaken between 6.00am and 12.30am. It was stated that the afternoon shift had moved from finishing at midnight to finishing at 12.30am. The change to the day shift was to move from 6.00am to 6.00pm to 6.00am to 8.00pm. However Mr Soueid stated that, if work went beyond those hours it was overtime.80

[59] Mr Soueid’s understanding of the second paragraph of clause 10.5 was that it was designed to ensure that permanent employees had first access to all of the work from 12.30am to 6.00am. 81 With respect to when the Sunday night/Monday morning work commenced, Mr Soueid agreed that it had probably started in early 2000. He disagreed that it had ceased between March 2008 and July 2010, believing that it was more recently. It was stated that a number of leading hands would be regularly rostered to do overtime shifts, particularly in 2008 and even on night shift.82 Mr Soueid also recalled that the company had regularly rostered planned overtime shifts, particularly in 2008 and even on night shift.83

[60] For its part, the company’s witness evidence covered both the history of the “midnight shift” and the negotiations for the new enterprise agreement. Mr Johnson’s evidence largely concerned the history of the disputed work. It was explained that under the 2005 Agreement, if a permanent employee worked from midnight Sunday to 6.00am Monday, they would be paid overtime. This was because the Company would have requested they work at the time due to a skill deficiency. 84 He recounted that this shift started at 8.00pm on Sunday and ended at 4.00am on Monday morning and was connected to the afternoon shift. The permanent employees who worked this shift were said to have been paid night shift loading. He said that this shift operated from early 2000 until March 2008 when it ceased. It was then reintroduced around 26 July 2010 and the hours were from midnight on Sunday night until 4.00am or 6.00am on Monday.85

[61] Mr Johnson provided a number of spreadsheets which showed a breakdown of the midnight shifts worked from July 2010 to December 2012 including their frequency and when they were worked. 86 It was also indicated that he was aware of one particular Leading Hand who worked a Sunday night shift as part of his ordinary hours. He recalled that there were two or three Leading Hands who worked on Sunday night from 10.00pm to 6.00 am on Monday as part of their ordinary hours, as at July 2010.87 In addition, there is a cleaning night shift who worked from 8.30pm to 6.00am, Monday to Thursday.88

[62] It was Mr Johnson’s recollection that, during the negotiations, the first part of the second paragraph of clause 10.5 was added following a FWA recommendation in March 2010. He understood that the words in contention were included in the new Agreement to entitle employees to overtime rates when they were required to work extra unplanned hours following the end of their rostered shift at 12.30am. 89 Mr Johnson stated that his understanding was that the union and the company had the same view that ad hoc meant hours which were unplanned and not pre-booked and which arose at short notice.90

[63] Ms Merner’s evidence dealt mainly with the negotiations for the new agreement as she was involved, on behalf of the company, in them. She explained that, prior to the negotiations, the NUW delegates had concerns about the utilisation of casuals, Flex Up hours, overtime allocation and part-time employees. Agreement was reached, whereby a booking system which gave preferential access to permanent employees for Additional Hours and Flex Up hours was introduced - in settlement of the NUW’s concerns. It was Ms Merner’s view that there was a mutual understanding that “ad hoc” hours meant those hours which were not planned eg sick leave or machinery failures. 91 Ms Merner discussed the different draft enterprise agreements. She explained that, during the discussions about the disputed words in clause 10.5, she understood that ad hoc had the same meaning as the words in clause 7.1(c) ie. hours that were not booked or planned and which arose unexpectedly.92 With respect to the first part of the second paragraph of clause 10.5, it was stated that the words “Any work commencing prior to 6.00am” were designed to deal with the situation that was taken to FWA.93

[64] Further, it was Ms Merner’s evidence that she did not hear Mr Tzimokas make the comments as alleged by Mr Soueid. She said that she did not think Mr Tzimokas would have said that as the company had a shift at that time which was paid at the night shift rate. As were, the company wanted the night shift provisions to remain to allow, potentially, for work outside day and afternoon shift. 94

[65] Ms Merner also indicated that, following the letter given to the union on 4 November 2010, there were further discussions (four months) concerning the drafting of a new enterprise agreement based on the in-principle agreement reached. 95

[66] On the basis of the material before me, I have not been persuaded that the evidence unambiguously disclosed the mutual intention of the parties in negotiating the terms of the new Agreement. There is, however, one exception and that concerns clause 7 - Booking of Hours. At the end of subclauses 7.1(a) - (c), there is a Note which says:

“The intention in making these arrangements is that employees, and the business, will benefit by the above booking system. It is also to ensure all ad-hoc hours are made available to direct employees prior to indirect labour in the first instance. It is also to provide Woolworths permanent employees with the ability to book “Additional Hours” whilst providing the Company with experienced and flexible staffing solutions.”

[67] However, in terms of the Agreement clauses in question (Additional Hours and Overtime Preferences), there remains ambiguity as to the mutual intention of the parties.

(e) Conclusions

(i) Additional Hours and Flex Up Hours Clauses.

[68] Taking all of these considerations into account, I have formed the view that the disputed work (body of work) from 12.30am to 4.00am or 6.00am on a Monday are not Additional Hours for full time employees, as they do not meet the criteria for Additional Hours under the Agreement. This is because Additional Hours can only be worked on a Monday to Friday on the same shift as the employee’s contracted shift hours. Weekend Additional Hours can be worked on any shift. The Agreement, from its commencement, requires full time employees to work day and afternoon shifts (clause 6.1.2). The Agreement does provide for a night shift in the Hours of Work clause (clause 8.4). It was Ms Merner’s evidence that the Company wanted to have the night shift provisions remain in the Agreement to allow, potentially, for work outside day and afternoon shift. 96 However, given the provisions of clause 6.1.2, it is my view that the shift pattern on site is day and afternoon shift. In addition, Additional Hours can only be offered between 6.00am and 8.00pm (day shift) and 3.00pm to 12.30am (afternoon shift) - clause 7(b)(i). Therefore, the disputed work, which occurs after 12.30am, cannot be Additional Hours.

[69] The same situation applies to part-time employees. Additional Hours between 6.00am and 8.00pm and 3.00pm to 12.30am only can be booked through the booking system as well as the shift pattern on site is day and afternoon shift, a part-time employee can only work Additional Hours on the same shift as their agreed hours, namely day or afternoon shift. As the disputed hours commence at 12.30am, they do not meet the criteria for Additional Hours under the Agreement.

[70] In terms of Flex Up Hours for part-time employees under clause 7(b)(i), these are offered through the booking system on the basis of day and afternoon shift, i.e. between 6.00am and 8.00pm and 3.00pm and 12.30am. As the disputed work is outside these hours, they are not Flex Up Hours as they do not meet the criteria in the Agreement.

[71] With respect to casual employees, they may work up to 40 hours per week. When a casual employee works on a shift that attracts a shift loading, the Agreement provides that it will be paid in addition to the casual loading (clause 6.3.4). Hours worked in excess of 9.5 hours on one day or 40 hours per week will be paid as overtime.

[72] Taking a step back, the terms of the Agreement provide for the following:

A. Full time employees

(1) A full time employee is rostered to work 38 contracted hours per week within a day and afternoon shift structure.

(2) The employee can agree to work further hours over and above their contracted hours as Additional Hours. Additional Hours cannot be worked after 12.30am or before 6.00am as Additional Hours have to be worked on the same shift as the employee’s contracted hours. Therefore, the disputed work cannot be offered/worked as Additional Hours.

(3) As the disputed work is not ordinary (contracted) hours nor Additional Hours, it can only be overtime. This is consistent with clause 7.1(a)(iii) of the Agreement which provides that any hours that are not contracted hours and that have not been booked through the booking system will be treated as overtime.

B. Part-time employees

(1) A part-time employee is rostered to work their agreed hours up to 34 hours a week.

(2) The employee can request to increase their hours above their contracted work roster by flexing up to 38 hours per week. Flex up hours are available to be worked on the day or afternoon shift. The disputed work is available from 12.30am and so does not fall within the criteria for Flex Up Hours in the Agreement.

(3) The employee can then request an additional maximum of 4.5 Additional Hours a week. As for full time employees, the terms of the Additional Hours clause for part-time employees mean that they can only work Additional Hours on the same shift as their contracted part-time shift. As the disputed work is between 12.30am and 6.00am on a Monday to Friday, it cannot be offered as Additional Hours.

(4) As the disputed work is not the part-time employee’s agreed contracted work roster and neither is it Flex Up Hours or Additional Hours, it can only be overtime. This approach is consistent with the terms of clause 7.1(a)(iii) of the Agreement for the reasons set out in paragraph [72]A.(3) above.

C. Casual employees

(1) Casual employees may work up to 40 hours per week.

(2) These casual hours are offered through the booking system and casual employees who work on a shift that attracts a shift loading will be paid the applicable shift loading in addition to the casual loading.

(3) Any hours worked in excess of 9.5 hours in one day or 40 hours per week is overtime.

(4) Unless the disputed work takes a casual employee beyond 40 hours a week or 9.5 hours on that day, overtime for that work is not payable. If the disputed work does mean that a casual employee works more than 40 hours a week or 9.5 hours a day, then overtime is to be paid.

(ii) Overtime Preference Clause.

[73] With respect to the Overtime Preference clause (clause 10.5), the first paragraph is concerned with the way overtime is distributed, i.e. based on the Preference Hierarchy and job function.

[74] It was common ground that the first part of the second paragraph, which deals with work commencing prior to 6.00am, was the result of a Fair Work Australia recommendation in March 2010. The second part “or ad hoc work after 12.30am” appears to have been included out of an abundance of caution. It is unnecessary because, if work in addition to contracted/agreed hours are not Additional or Flex Up Hours, they will be overtime. This part of the second paragraph reinforces this approach by indicating that ad hoc hours after 12.30am will be treated as overtime. Ad hoc work cannot be said to be ordinary hours. As there is no night shift required under the Agreement, any work after 12.30 am cannot be part of ordinary hours. As Additional and Flex Up Hours are unable to be worked between 12.30am and 6.00am, the only other option available is overtime.

[75] Accordingly, I find that the disputed work set out in paragraph [2] above, for full time and part-time employees, is overtime in accordance with clause 10.5 of the Agreement. With respect to casual employees, I find that the disputed work is only overtime if the casual employee has worked more than 40 hours a week or more than 9.5 hours on that day (clause 10.3. Otherwise the disputed work attracts the appropriate shift loading in addition to the casual loading (clause 6.3.4 of the Agreement).

Appearances:

Mr D Mujkic for the Applicant

Mr S Jauncey for the Respondent

Hearing details:

2013.

Melbourne.

April 10, 11.

1 Exhibit A2 at paragraphs 2 - 3and Exhibit R7 at paragraphs 1 and 3

2 Ibid at paragraph 4 and ibid at paragraph 2

3 Exhibit R7 at paragraph 3

4 Exhibit A2 at paragraphs 7 - 8

5 Ibid at paragraph 9

6 Exhibit A1

7 Transcript PN 1181

8 Ibid PN 1183

9 Ibid PN 1185

10 Ibid PN 1186 and 1508 and Exhibit A2 at paragraphs 18 - 19

11 Ibid PN 1187

12 [2012] FWAFB 3994

13 Exhibit A2 at paragraphs 15 - 16

14 Transcript PN 1196

15 Ibid PN 1197 and 1516 - 1517

16 Ibid PN 1197

17 Ibid PN 1197

18 Exhibit A6

19 Transcript PN 1198 - 1203

20 Ibid PN 1204

21 Exhibit A7

22 Transcript PN 1204 - 1207

23 Exhibit A8

24 Transcript PN 1208 - 1210 and 1502 - 1507

25 Ibid PN 1211

26 Ibid PN 1212

27 Ibid PN 1213 - 1216,1225 and 1497 - 1507

28 Ibid PN 1225 - 1226

29 Ibid PN 1217 - 1218 and Exhibit A2 at paragraph 24

30 Ibid PN 1228 - 1229 and ibid at paragraph 21

31 Ibid PN 1515

32 Ibid PN 1518 - 1519

33 Ibid PN 1223 - 1224 and Exhibit A2 at paragraphs 22(iii) and 24

34 Ibid PN 1219 - 1220 and ibid at paragraph 22(i)

35 Ibid PN 1221

36 Exhibit A2 at paragraphs 22 - 23

37 Transcript PN 1226

38 Ibid PN 1227

39 Ibid PN 1240 - 1264

40 Ibid PN 1265 - 1266

41 Ibid PN 1267

42 Ibid PN 1268

43 Ibid PN 1269 - 1270

44 Exhibit R9

45 Exhibit R2

46 Transcript PN 1271 - 1272

47 Ibid PN 1273 - 1276

48 Exhibit R3

49 Transcript PN 1277 - 1280

50 Ibid PN 1281 - 1284

51 Exhibit R15

52 Transcript PN 1285 - 1288 and 1297 - 1298

53 Exhibit R5

54 Transcript PN 1300 - 1302

55 Exhibit A4

56 Transcript PN 1302 - 1306

57 Exhibit A5

58 Transcript PN 1307 - 1309

59 Exhibit A6

60 Transcript PN 1310 - 1329

61 Ibid PN 1345 - 1352

62 Exhibit A7

63 Transcript PN 1419 - 1428

64 Exhibit A8

65 Transcript PN 1428 - 1432

66 Ibid PN 1433

67 Ibid PN 1434 - 1439

68 Exhibit R12 at Attachment DJ7

69 Exhibit R5

70 Transcript PN 1434 - 1445

71 Ibid PN 1447

72 Ibid

73 Ibid PN 1449 - 1450

74 Ibid PN 1451 - 1453

75 Ibid PN 1454

76 Ibid PN 1455

77 [2012] FWAFB 3994

78 Ibid PN 86 - 89 and Exhibit A3

79 Ibid PN 56 - 57

80 Ibid PN 58 - 59

81 Ibid PN 61 - 67

82 Ibid PN 79 - 81 and Exhibit A3

83 Ibid PN 71 - 75

84 Ibid PN 926 - 933 and 964

85 Ibid PN 852 - 853 and Exhibit R12

86 Ibid PN 968 - 1021 and Exhibit R12

87 Ibid PN 857 - 863 and Exhibit R12

88 Exhibit R12

89 Ibid PN 1025 - 1027 and Exhibit R 12

90 Ibid PN 1029 - 1039 and Exhibit R12

91 Ibid PN 773 - 776 and Exhibit R8

92 Ibid PN 774 - 781 and Exhibit R8

93 Ibid PN 777 and Exhibit R8

94 Ibid PN 721 - 727

95 Ibid PN 765 - 769 and 782 - 785

96 Ibid PN 726

Printed by authority of the Commonwealth Government Printer

[2013] FWC 6467

9 SEPTEMBER 2013