Retro Traffic Pty Ltd

[2019] FWC 2062

[2019] FWC 2062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Retro Traffic Pty Ltd
(AG2018/3590)

COMMISSIONER HAMPTON ADELAIDE, 29 MARCH 2019

Application for approval of The Retro Traffic Enterprise Agreement 2018 – application approved at first instance – decision appealed – appeal granted on the basis that agreement did not leave all employees better off overall – application remitted for further hearing and re-determination – revised undertakings provided - operation of Award shiftwork provisions considered for comparative purposes – whether shiftwork requires consecutive shifts at same site or project – found night shift the appropriate comparator given provisions of the Award and the operations of employer – agreement capable of approval subject to further undertaking.

1. Introduction and background

[1] This decision deals with an application made by Retro Traffic Pty Ltd (Retro) under s.185 of the Fair Work Act 2009 (FW Act) to approve The Retro Traffic Enterprise Agreement 2018 (Agreement).

[2] The Agreement was originally approved 1 by another arm of the Commission in December 2018. However, that decision was overturned by a Full Bench following an appeal lodged by the Australian Workers’ Union (AWU) in a decision2 issued in March 2019 (the Appeal Decision).

[3] The Appeal Decision found that the Agreement did not meet the better off overall test set out in s.193 (BOOT) as required by s.186(2)(d) of the FW Act. 3 Without being definitive, the BOOT has been described in the following terms by the Full Bench in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery:4

“[11] It may be seen from the above that an enterprise agreement will pass the better off overall test if the Commission is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

[12] The application of the better off overall test is not to be applied as a line by line analysis. Rather it is a global test requiring consideration of advantages and disadvantages to award covered employees and prospective award covered employees of an agreement’s application compared to the application of a relevant modern award. The application of the better off overall test therefore requires the identification of terms of an agreement which are more beneficial to the relevant employees when compared to the relevant modern award, the terms of an agreement which are less beneficial or detrimental when compared to the relevant modern award and then an overall assessment of whether each relevant employee would be better off under the agreement.”

[4] In essence, the Full Bench dealt with three objections concerning how the Agreement would apply in comparison with the relevant modern award; being the Building and Construction General On-site Award 2010 (Award). Given the overall balance between the remuneration and conditions of the Agreement and the Award, these objections had the potential to significantly impact upon the global assessment required in the application of the BOOT. I note that all other requirements for approval of the Agreement under the FW Act 5 had been satisfied.

[5] The three objections advanced by the AWU may be summarised as follows:

•  The shiftwork objection - in some cases, workplaces covered by the Agreement would not fall within the scope of the shiftwork provisions of the Award. This in turn was founded on the proposition by the AWU that the shiftwork provisions of the Award, as applicable to the civil construction industry (clause 33 and associated provisions), require that there be a system of work where shift employees were followed by other shift employees at the work site or project concerned. This meant that the Agreement does not provide the necessary distinction between day workers and shift workers, thereby allowing Retro to pay the shiftwork loading instead of overtime rates to employees who would not be considered shiftworkers under the Award. Retro contends, in effect, that the shiftwork provisions of the Award are the appropriate comparator for the night shift/work for the purposes of the BOOT.

•  The shift notice objection - casual employees were working on sites where shiftwork provisions would apply, but were not entitled under the Agreement to overtime rates where they are given shifts with less than 48 hours’ notice, as they would be under the Award.

•  The shift pattern objection - where employees were not working shifts that formed at least 5 consecutive shifts, the additional payments that would otherwise be due under the Award were not payable under the Agreement.

[6] In the Appeal Decision, the Full Bench did not finally deal with the shiftwork objection but concluded, in effect, that the shift notice and shift pattern objections had substance and that in all of the circumstances, including the relevant undertaking then made in relation to one of those objections, “we do not consider that the Agreement meets the BOOT given the overall package of benefits in the Agreement for some employees when considered in the context of the package of Award provisions applied to this enterprise.” 6

[7] The appeal was upheld and the application for approval of the Agreement was remitted to me for re-determination in accordance with the Appeal Decision.

[8] I have now heard further submissions from the parties and received revised undertakings from Retro.

[9] This decision should be read in conjunction with the Appeal Decision.

2. The revised undertakings

[10] In addition to other undertakings that were continued from the original application, Retro provided 7 the following revised undertakings dealing with the shift notice and shift pattern objections:

“4. In addition to the wording in clause 8.2 (b), if the employer rosters an employee to work on an afternoon or night shift for less than 5 consecutive shifts, and that occurs other than at the request or cause of the employee concerned, the effected employee shall be paid the rate of time and a half for all the ordinary time during that shift. Further “the relevant notice” shall mean that all employees covered by the Agreement must be given at least 48 hours notice of a rostered shift. Failure to provide the required 48 hours notice for afternoon or night shift work will result in the employee being paid at the relevant overtime rates.

5. For the avoidance of doubt clause 8.2 (a) shall only apply to employees engaged in day work.”

[11] The AWU supported the revised undertakings and I consider that these adequately deal with the underlying issues associated with the two objections concerned. The undertakings do not result in substantial changes to the Agreement and no employee will be disadvantaged or suffer financial detriment. I have also sought the views of the other employee bargaining representatives. As a result, I would accept the undertakings pursuant to s.190 of the Act, and subject to the approval of the instrument, the undertakings would be taken to be a term of the Agreement.

3. The shiftwork objection

[12] I have set out the nature of this objection earlier in this decision. It involves various aspects associated with if and how the shiftwork provisions of the Award would, for comparative purposes of the BOOT, apply to many of the operations of Retro under the Agreement.

[13] In order to deal with this issue it is necessary to provide some context about the operations of Retro and the terms of both the Agreement and the Award.

[14] Retro operates in the traffic management industry, predominantly in Sydney, but also services some regional cities and projects. Retro supplies traffic management services to clients in the civil construction and maintenance sectors on a contract basis. Depending on the client’s needs these services can be provided at any time, day or night, and on any day of the year; and can be provided to clients at different sites.  8 Retro has traditionally engaged casual employees in either day work or on (permanent) night shift; however, the Agreement provides coverage for full and part-time employees and the potential for afternoon shifts, the terms for which are referenced directly from the Award.

[15] A summary of the Agreement, including the additional benefits it provides in comparison with the Award, together with the details of the shift provisions of the Agreement, are set out in the Appeal Decision. Subject to the impact of certain provisions, such as callout emergency work under clause 8.2(f) and the overtime and penalty rates in clause 8.5, the Agreement contemplates that work performed within the day work definition is payable at ordinary rates, and work performed within the night work definition is payable at the rate specified in Schedule 1 for such work, being a loading of 30% (in addition to the casual rate). As written, where a work “shift” includes work in both periods, the relevant payment will apply without the entire “shift” being treated as an afternoon or night shift. This may however be impacted by the undertakings and I will return to this aspect in due course.

[16] Amongst other parameters, the ordinary hours of Day work are defined in clause 8.1.1 of the Agreement as being a maximum of 38 hours per week and up to 8 hours per day between 6.00am and 6.00pm Monday to Friday. Night work is also defined in clause 8.1.2 inter alia as being between 6.00pm and 6.00am Monday to Friday with a maximum of 8 hours inclusive of a paid meal break.

[17] Day, Night and Afternoon shift/work are also defined as follows in clause 1.1 Definitions of the Agreement as follows:

“Day shift/work all hours worked between 6.00am and 6.00pm.

…

Night Shift/Work all hours worked between 6.00pm and 6.00am.

Afternoon/ work shifts starting at or after 10.am (sic) and before 6.00pm”

[18] For reasons that follow and subject to one caveat, given the terms of both instruments, the additional benefits provided by the Agreement, 9 and the operation of the revised undertakings, the Agreement would in my view meet the BOOT if Retro’s view as to the proper operation of the shiftwork provisions of the Award is correct.

[19] It is also clear that if, for comparative purposes, the Award shiftwork provisions were not applicable to the operations covered by the Agreement and/or not capable of providing the kind of arrangements contemplated in the Agreement, the Agreement would fail the BOOT. This was conceded by Retro and arises because unless the Award shiftwork provisions were applicable, all work outside of day work (6.00am to 6.00pm on weekdays) would be treated as overtime under the Award. The payment of the 30 % night shift loading under the Agreement on those days would not, despite some other beneficial provisions, be sufficient to ensure that all employees were better off overall with the approval of the Agreement.

[20] The position would be less clear if the Commission found that the Award shiftwork provisions were generally applicable and capable of providing the kind of arrangements contemplated in the Agreement, but the day work was considered to be a day shift under the Award. In that case, the paid meal break provisions under clause 35.2 of the Award would also need to be taken into account, along with the range of additional benefits provided by the Agreement for the day workers, in weighing upon the relevant instruments on balance for the purposes of the BOOT. Ultimately, this does not arise given my findings below.

[21] The shift work provisions of the Award are as follows.

[22] In general terms, clause 33 of the Award provides for ordinary hours of work between 7.00am and 6.00pm Monday to Friday. The provision however allows for the operation of the separate shiftwork provisions in clause 34. The relevant shiftwork clauses of the Award for present purposes include clause 34.2(a) of the Award, which applies to the civil construction sector and sets out the following definitions:

“For the purpose of this clause:

shiftwork means any system of work in which operations are being continued by the employment of a group of employees upon work on which another group had been engaged previously

day shift means any shift starting on or after 6.00 am and before 10.00 am afternoon shift means any shift starting at or after 10.00 am and before 8.00 pm night shift means any shift starting at or after 8.00 pm and before 6.00 am

rostered shift means a shift of which the employee concerned has had at least 48 hours’ notice.”

[23] Clauses 34.2(b) to (i) are as follows:

“(b) Roster

Shifts must be worked according to a roster which will:

(i) provide for rotation of shifts unless all the employees concerned agree otherwise;

(ii) provide for not more than eight shifts to be worked in any nine consecutive days; and

(iii) specify the commencing and finishing times of each shift.

(c) Ordinary hours

(i) The ordinary hours of work for shiftworkers will not exceed an average of 38 per week over a cycle of two, three or four weeks.

(ii) A shift will consist of not more than eight consecutive hours inclusive of a crib time of 30 minutes which will be counted as time worked.

(d) Rostered off shift

Twenty-four minutes of each eight hour shift worked during a shift cycle will accrue as an entitlement to take a rostered off shift after each 19 shifts worked. The rostered off shift will be paid for as though worked.

(e) Paid leave

Each day of paid leave taken and any public holiday occurring during any shift cycle will be regarded as a shift worked for accrual purposes.

(f) Pro rata accrued entitlements

A shiftworker who has not worked or is not regarded by reason of clause 34.2(e) as having worked a complete shift cycle will receive pro rata accrued entitlements for each shift worked or regarded as having been worked in that cycle. Such pro rata entitlements will be payable for the rostered off shift or, in the case of termination of employment, on such termination.

(g) Taking of rostered off shifts

The employer and employees concerned will agree in writing upon arrangements for the taking of rostered off shifts or for their accumulation. Such accumulation will be limited to not more than five shifts before they are taken as rostered off shifts. When rostered off shifts are taken they will be regarded as shifts worked for accrual purposes in the particular shift cycle in which they are taken.

(h) Work on a rostered off shift

The rostered off shift prescribed by this clause will be taken as a paid shift off. Provided that where an employer for emergency reasons requires an employee to work on their rostered off shift the employee will, in addition to their accrued entitlements, be paid at overtime rates for all work performed on the rostered off shift.

(i) Overtime

All time worked by a shiftworker in excess of or outside the ordinary hours (inclusive of time worked for accrual purposes), or on a shift other than a rostered shift, must be paid for at the rate of double time. Provided that this will not apply when the overtime is worked by arrangements between the employees themselves or for the purpose of effecting the customary rotation of shifts.”

[24] Clauses 34.2(j) to (n) of the Award prescribe the loadings payable to shiftworkers and these include that:

•  a shiftworker is entitled to a 15% loading on their ordinary time hourly rate for work on an afternoon or night shift;

•  if a shiftworker works on an afternoon or night shift for less than 5 consecutive shifts, the shiftworker is entitled to be paid a 50% loading on their ordinary time hourly rate for each shift; and

•  a shiftworker who “during a period of engagement, works night shift only … or … works on a night shift for a longer period than four successive weeks … or … works on a night shift which does not rotate or alternate with another shift or with day work so as to give the employee at least one third of their working time off night shift in each cycle” must be paid a 30% loading on their ordinary time hourly rate for work on those night shifts.

[25] Clause 36.2 of the Award entitles employees to overtime as follows:

“All time worked beyond an employee’s ordinary time of work (inclusive of time worked for accrual purposes as prescribed in clauses 33—Ordinary hours of work and 34—Shiftwork), Monday to Friday, must be paid for at the rate of time and a half for the first two hours and at double time thereafter.”

[26] However, the shiftworker entitlement to overtime is modified by clause 34.2(i), which provides:

“All time worked by a shiftworker in excess of or outside the ordinary hours (inclusive of time worked for accrual purposes), or on a shift other than a rostered shift, must be paid for at the rate of double time. Provided that this will not apply when the overtime is worked by arrangements between the employees themselves or for the purpose of effecting the customary rotation of shifts.”

[27] The resolution of the shiftwork objection requires the Commission to determine the proper application of the Award to the circumstances covered by the Agreement. This includes consideration of three interrelated issues; namely, whether:

•  Retro conducts a roster system as would appear to be contemplated by clause 34.2 of the Award;

•  The Award provision requires that each of the consecutive groups be working shifts (one of the defined shifts - rather than day work); and

•  The consideration of the operations that are continued by each “shift” must be focused on each site or project – rather than the operations of the employer more generally.

[28] Retro contends that the “shift” arrangements contemplated in the Agreement are consistent with those in the Award on the following basis:

•  Retro does have a roster system where employees are rostered to work either day work or night shift across its operations;

•  The AWU seeks to imply or import the word “worksite” and “two shifts” which do not appear in the definition. This is contrary to well-established principles of construction.

•  The starting point is the “ordinary meaning of the words, read as a whole and in context”. The definition of shiftwork may be deconstructed into the below propositions:

•  First, the definition adopts the pronoun “any” to reflect that it is intended to have a broad scope to the “system of work” and “operations”.

•  Second, the “system of work” is to be understood by industrial realities that an employer is duty bound to provide employees with a safe system of work, therefore the phrase is to be understood as a reference to the employer;

•  Third, the “operations … being continued” is in the context of the “system of work” of the employer. In the circumstances of this proceeding, Retro Traffic operates on a continuous 24-hour cycle with groups of employees being replaced by another group of employees on traffic management work that a group of employees had been engaged previously.

•  Fourth, the use of “upon work” which we assert is ‘traffic control” arises in the surrounding context of the definition having regard to the “system of work” and “operations” of the employer. The AWU’s implied restriction of a specific worksite does not appear in the definition. The restriction is otherwise divorced from the industrial realities of traffic management work. Given that Retro Traffic’s operations are continuous, there is no occasion to impose a limitation. This is particularly so given that the definition is by reference to “any system of work”. If the definition was intended to impose a limitation to a specific worksite then those words would appear in the definition.

•  Fifth, the “group that had previously been engaged” ought to be construed as a reference to either dayworkers or shiftworkers. The definition does not impose a limitation. It is open for the previous group to be dayworkers and for an afternoon shift or evening shift to continue the operations. The AWU’s construction about two shifts on the worksite strains at the wording of the definition given it seeks to imply or import words that are not contained in the definition.

•  The Award provision does not require that the operations are continued by shift workers and there is no bar to having day work followed by a night (or afternoon) shift. This position was supported by Gostencnik DP’s interpretation of a similar clause in Australian Manufacturing Workers' Union v CBI Constructors Pty Ltd[2015] FWC 7460, [43]-[49] (AMWU v CBI); and

•  The AWU has only recently prescribed to their new interpretation of the traffic management industry with regards to ‘shiftwork’ as defined in clause 34.2(a), clearly evidenced by the AWU supporting, making applications for, or being covered by, tens of single enterprise agreements both in New South Wales and nationally.

[29] In relation to the operation of the Award for the purposes of the shiftwork objection, Retro submitted that the AWU was incorrect in its assertion that for a shiftwork system to exist as contemplated by the Award, there must be at least two shifts at the relevant worksite. That is, the focus was not upon the worksite but upon the employer’s operations. Retro, it was submitted, has a system across its business where employees were engaged on various “shifts” so as to meet the requirements of its clients, and this was consistent with the Award. In that light, it was appropriate that the work performed outside of the normal day shift should be considered to be shiftwork (and not overtime) for the purposes of the comparison with the Award.

[30] During the proceedings, Retro also indicated that the provisions of the Agreement, in light of the revised undertakings, were intended to mean that where a day work employee was rostered to work night shift/work, they would be paid at overtime rates. I do not consider that this is the clear result of the Agreement and the undertakings, and for reasons that will become clear, I will require an additional undertaking to confirm this aspect.

[31] The AWU contends that under the Award most of the work outside of the day work span of hours should be treated as overtime given the nature of the operations of Retro and the shiftwork provisions of the Award. That is, the Award shiftwork provisions are not applicable to that work for present comparative purposes. In essence, the AWU contends that in order for the Award shiftwork provisions to apply, there must be at least two shifts as defined at each relevant worksite or project.

[32] The AWU further contends that the decision in AMWU v CBI does not dictate the proper application of the Award provision given the different provisions of the instruments concerned and the different argument advanced by the Union in that matter. In this case, the following approach was posited:

•  The structure of the clause as a whole suggests that such a rostering arrangement (day work followed by an afternoon shift) would be unusual. Clause 32.4(b) expressly provides that a shiftwork operation will provide for rotation of shifts unless agreed otherwise by the employees.

•  To have one cohort of permanent shiftworkers and another cohort of permanent day workers is contrary to that apparent requirement and would not be permitted under the Award except with the Agreement of “all employees concerned”.

•  The difficulty with adopting the Deputy President’s approach in the context of the Award is grappling with the concept of a single-shift operation in light of the express requirement in clause 32.4(b) and the remainder of the shiftwork provisions in clause 34.2, which presuppose a rotation of shifts.

•  The Full Bench (in the observation at [40] of the Appeal Decision) appeared to draw attention to the fact that the award’s shiftwork definition itself does not expressly require the two groups of employees to be groups of shiftworkers.

•  For the reasons given, the AWU concedes that, read in isolation from the remainder of the clause, that interpretation of the definition in clause 34.2(a) would appear correct. However, read in context, that interpretation appears to clash with the expectation (and requirement in the absence of employee agreement) of a rotation of shifts.

•  If the Deputy President’s construction were adopted, the clause’s provisions would not fit coherently together. The only interpretation of clause 34.2 which renders its constituent provisions harmonious is one in which the definition in clause 34.2(a) requires at least two shifts (day, afternoon or night) and a ‘permanent shift’ in conjunction with a day work operation is not adequate.

[33] In the alternative, if the Commission concludes that clause 34.2 does not require at least two shifts, the AWU submits that it requires at least two groups of employees to be performing operations on the same worksite or project. In addition, if such a static approach were adopted (with permanent day work and afternoon/night shift groups), clause 34.2(b) requires the consent of all shiftwork employees concerned.

[34] In relation to whether the work can be spread across multiple worksites or projects the AWU contends:

•  The Award generally operates on a site-based level. It regularly refers to ‘site’, ‘on-site’ or ‘project’.

•  The existence of an integrated multi-site roster, operating across multiple ‘sites’ in relation to a single project could satisfy the shiftwork definition in the Award. That is not, however, the manner in which the employer’s operations work.

•  The employer has multiple clients with divergent needs. While it may be accepted that certain clients (for instance, Sydney Light Rail) allow the employer to organise a structured advance roster, the evidence given in the appeal confirms that this is not always the case.

•  As conceded by the employer’s manager in evidence, part of the employer’s operations are responsive to client needs on a day-by-day basis. An urgent call-out to provide traffic management in relation to roadwork for a single night could not be said to constitute part of any system of work in which operations were being continued by a group of employees on work which another group had been engaged previously. It cannot be said to form part of a rotation of shifts in relation to common work as the definition requires.

•  The employer’s suggestion that ‘operations’ and ‘work’ in clause 34.2(a) should be defined as all of the work and operations of the employer’s enterprise must be rejected. If that approach were adopted, the fact that a work crew is engaged to perform traffic management in Sydney during the day is a sufficient to permit the employer to classify employees in Wollongong engaged on a one-off asphalting assignment as shiftworkers.

•  The employer’s operations, as conceded in the appeal proceedings, do not operate by way of a multi-site organised rotation of shifts such that they could be said to satisfy the shiftwork definition across the board. While there may be aspects or parts of the employer’s operations which do satisfy the shiftwork definition (for instance, the ongoing traffic control contract with respect to the metropolitan light rail), that cannot be extended by an artificial reading of the Award’s provisions to the employer’s intermittent and irregular client-responsive work at unsociable hours.

•  Intermittent, client-responsive work in which employees cannot be given rosters in advance which form part of a pattern of shift rotations is incapable of satisfying the shiftwork definition in clause 34.2 of the Award.

•  As the AWU’s evidence in the appeal confirmed, the nature of work in the traffic control industry more broadly is characterised by these features (intermittent, client-responsive engagements which often relate to one-off ‘jobs’). The employer’s evidence did not establish that those features are entirely absent from its enterprise. While the enterprise may also perform work in relation to major projects, that kind of work is not the mainstay of the traffic control industry and the Commission should not make its assessment of the employer’s operations solely on the basis of that work.

[35] The AWU accepted that the contended shortcomings of the Agreement could be met by the employer providing an additional undertaking. It proposed that any such undertaking would need to ensure that where a site or project was not operating on a roster system with two consecutive (defined) shifts, overtime would be payable for all work undertaken outside of the span of day work.

4. Consideration of the shiftwork objection

[36] The BOOT requires a global comparison between the Agreement and the Award, when applied in the context of the operations of Retro. This is the limited context in which the dispute about the proper application of the shiftwork provisions of the Award has arisen, rather than a direct dispute about whether the approach to hours of work and shiftwork in the Agreement, or Retro’s operations, are of themselves consistent with the Award.

[37] It is common ground between the parties that the Commission should apply the approach to construction of the Award by applying the principles outlined for the interpretation of industrial agreements as recently set out by a Full Court of the Federal Court in WorkPac Pty Ltd v Skene 10:

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” 11 (citations omitted)

[38] These principles were cited with approval by Rangiah J with regard to awards in Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3). 12

[39] As a result, it is important to consider the entire shiftwork provisions of the Award (and the Agreement) when ascertaining the objective intention. The analysis of the individual provisions, and their placement and context, are elements of that overall consideration.

[40] I add that to the extent that Retro seeks to rely upon previous enterprise agreements in which the AWU was a party (or at least covered by the instrument) apparently applying the approach evident in this Agreement, I do not consider that such carries any weight for present purposes. Unless the Commission has expressly considered the issue, these are no assistance in the proper application of the Award or this Agreement for present purposes.

[41] The industrial context for the Award includes that it applies to building construction and maintenance, engineering construction, and civil construction sectors. Retro operates in the civil construction sector and traffic control operations of that kind are expressly included in the relevant scope. There are different shiftwork provisions in the Award and the civil construction provisions in clause 34.2 of the Award are fundamentally drawn from the former Australian Workers' Union Construction and Maintenance Award 2002. 13 The civil construction sector includes coverage of a wide variety of businesses and operations and includes construction, repair, maintenance and demolition of civil and/or mechanical engineering projects and other structures and facilities, and the associated activities.14

[42] It is also notorious that the civil construction sector includes major projects and smaller works and that each is likely to involve multiple employers who may come and go from the project as the various stages are undertaken. This includes certain contactors, including testers, batch plants and, relevantly, traffic maintenance. These, and many other trades and services, are also likely to involve employees who are allocated to a variety of projects and jobs at any one time. Retro is a good example of this. The provisions of the Award must in my view be assessed having regard to the nature of the industry that it seeks to cover.

[43] The evident purpose of the shiftwork provisions of the Award is to provide a system of work (rostering and payments) outside of the normal parameters of the ordinary hours specified in clause 33. That is, a system whereby employees may be rostered to work at various times in ordinary time, with additional payments and some other parameters which reflect the disutility of that work.

[44] I turn to consider the ordinary meaning of the words of the Award in that context. These have been set out earlier in this decision. This includes a definition of shiftwork and definition of day, afternoon and night shifts (clause 34.2(a)) and various entitlements and parameters.

[45] Shiftwork is defined in clause 34.2(a) as being “any system of work in which the operations are being continued by a group of employees.”(emphasis added) Unless there are contextual or express reasons to read this expression narrowly, I do not consider that I should do so. Indeed, these considerations support a broad reading of the provisions and for reasons outlined below, it would seem to me that this definition is capable of contemplating various systems of work where there are one or more shifts (as defined) and other systems where the operations in a general sense are continued by or from a group of employees who are not shiftworkers as defined.

[46] In AMWU v CBI, the Deputy President was dealing with the proper interpretation of an enterprise agreement which contained the following shift work definitions:

“18.13 Shift Work

18.13.1 Definitions:

18.13.1.1 "Shift work" means any system of work in which operations are being continued by a group of Employees upon work on which another group had been engaged previously and where Employees work either a Day shift, Afternoon shift or Night shift.

18.13.1.2 "Day shift" means any shift starting on or after 6.00am and before 10.00am.

18.13.1.3 "Afternoon shift" means any shift starting at or after 10.00am and before 8.00pm.

18.13.1.4 "Night shift" means any shift starting at or after 8.00pm and finishing at or after 8.00am.

18.13.2 Employees (other than those under the age of 18 years) agree to work shift work when required by the Company.

18.13.2.1 The Company must give an Employee 48 hours' notice of its intention to introduce shift work. The notice will include the intended start and finish times of each shift. Less than 48 hours' notice may be given if there are safety or emergency requirements.

18.13.2.2 The Company may vary shift rosters. Subject to providing Employees with 48 hours' notice of its intention, the Company may transfer shift work to or from non-shift work to shift work, and from one shift cycle to another.

18.13.3 Other than for work on a public holiday, the rate of pay for shift work (afternoon or night) shall be as follows:

18.13.3.1 200% of the applicable Ordinary Rate for that Employee's classification.”

[47] One of the two issues determined by the Commission in that case concerned whether the introduction of an afternoon shift meant that some day workers became “Day Shift” workers for the purposes of clause 18.13 of that enterprise agreement. The Deputy President found:

“[44] The proposition advanced by the AMWU is not supported by the text of clause 18.13. To begin with clause 18.13 makes no reference to one class of worker interfacing with another. Clause 18.13.1.1 defines ‘shift work’ as:

‘…any system of work in which operations are being continued by a group of Employees upon work on which another group had been engaged previously and where Employees work either a Day shift, Afternoon shift or Night shift’.

[45] That a day worker interfaces with an afternoon shift worker is beside the point and has no bearing on whether an employee is properly described as a day shift worker. To state the obvious, before there can be shift work, shift work must be required by CBI. That CBI has introduced an afternoon shift does not mean it requires a day shift instead of or in addition to day work. Secondly, though not free from doubt, it seems to me that the reference to ‘Employees’ where last appearing, is a reference to the ‘group of Employees’ first mentioned in the definition and not ‘another group’ who had been engaged previously on work. Thirdly, the reference in the definition to ‘operations are being continued’ is equally able to apply to a situation where the employer operates only an afternoon shift in conjunction with day work, as it is to a situation where three shifts, namely day, afternoon and night, are in operation.

[46] With the introduction of the afternoon shift, the group of employees who work the afternoon shift are participating in a system of work in which CBI’s operations at the construction site are being continued by that group of employees on work on which day workers have been engaged previously. That this is so does not result in the day workers either generally or those whose work might interface with an afternoon shift worker, becoming a day shift worker.”

[48] I consider that this approach is applicable to the present controversy. Of course, the full context and different terms of the enterprise agreement must be considered. However, if anything, the definition of shiftwork under the agreement being considered in AMWU v CBI, with its reference to “Day”, “Afternoon” and “Night” shift directly within the definition of shiftwork itself (which is not present in the Award), is more consistent with approach urged upon the Commission by the AWU in this matter.

[49] I accept that clause 34.2(b)(i) of the Award contemplates that the roster must provide for the rotation of shifts unless all of the employees concerned agree otherwise, is more consistent with the notion that the system of work in intended to involve defined shifts of work. However, the shiftwork provisions also expressly contemplate non-rotational shiftwork (clause 34.2(n)) and I note that the Agreement adopts the higher penalty specified by the Award (30 %) for all of its night shift work. The loss of an individual right to elect for the non-rotational shift system under the Agreement is however an issue relevant to the BOOT.

[50] I consider that it is possible for a night shift to be worked under the shiftwork provisions of the Award where the system of work involves operations that are being continued by a group of workers who may be shift or day workers.

[51] For many of the employees covered by the Agreement performing night shift where their worksites involve the continued operations of work by Retro employees at that same site, the above finding is sufficient to mean that the appropriate comparison from the Award for the night shift/work employees is the night shift provisions of the Award. However, there are some sites and projects where the night shift under the Agreement is performed without, in each case, following the work of other Retro employees at that particular work site.

[52] This leads to the second and related aspect; namely, whether the system of work contemplated by clause 34.2 of the Award must have only a site or project focus as contended by the AWU, or a broader operational “enterprise” focus as contended by Retro.

[53] The evidence reveals that at any one point in time during the working week, Retro has employees allocated to various work sites conducting the operations of traffic control. Given the involvement in many major projects, it is likely to always be the case that Retro employees are undertaking work on operations at times that follow the work of others, albeit sometimes at a different work site. Employees may also be sent from one site or project to another (with the appropriate notice or an additional penalty under the Agreement). The question is whether this can be considered to be a system of work in which the operations are being continued by a group of employees in the sense contemplated by clause 34.2(a) of the Award?

[54] Although the Award covers on-site construction work 15 it applies to the employers and employees award in that industry and given the nature of the industry and its express coverage of traffic control operations, the very nature of those operations should be taken into account. That is, the operations of Retro are to supply services and employees across multiple worksites and projects. I consider that the Award contemplates that coverage and those circumstances, and the assessment of clause 34.2 must be made in that context.

[55] Subject to one point of clarification, it is also tolerably clear from the terms of the Agreement and the revised undertakings that there is a roster system in place for the night shift employees. This includes the requirement to roster night shift/work employees and the other roster parameters in clause 8.2 of the Agreement 16 and in the undertakings.

[56] As a result, in the context of the particular operations of Retro, I consider that the night shift/work contemplated by the Agreement should be assessed for the purposes of the BOOT in the context of the (night) shiftwork provisions of the Award.

[57] I note that in the event that an afternoon shift was introduced by Retro under the terms of the Agreement, clause 8.1.3 of the Agreement calls up the relevant provisions of the Award. Employees in that context would be better off overall due to the other more beneficial provision of the Agreement that would continue to operate in conjunction with those shift provisions.

5. Conclusions and disposition of the matter

[58] It is common ground that all of the other requirements of the FW Act for the approval of the Agreement have been met. The remaining issue was satisfaction of the BOOT. It is also common ground that the shift notice and shift pattern objections that arise as part of the BOOT have been adequately dealt with by the revised undertakings. The shiftwork objection however remains a significant potential hurdle to the approval of the Agreement.

[59] For reasons outlined above, I consider that night shift/work contemplated by the Agreement should be assessed for the purposes of the BOOT in the context of the (night) shiftwork provisions of the Award. In that context, the indication given by Retro during the hearing of this matter - that where a day work employee was rostered to work on a night shift/work, they would be paid at overtime rates - is an important confirmation that a proper shift roster system will be in place so as to mean that the Award shift provisions remain the appropriate comparator and that the employees concerned are better off overall with the approval of the Agreement. My provisional view is that an additional undertaking confirming Retro’s intention in that regard, when considered in the context of the existing revised undertakings and the terms of the Agreement more generally, would not result in substantial changes to the Agreement and no employee would be disadvantaged or suffer financial detriment. 17

[60] Subject to receiving an undertaking addressing that issue, and having regard to all of the remuneration and conditions of the Agreement and the Award, I would be satisfied that all employees (including those working on night shift/work) will be better off overall with the approval of the Agreement. This includes the various features of the Agreement as identified (in summary form) in the Appeal Decision and the additional factors identified in this decision concerning the night shift/work arrangements under the Agreement, including the defined non-rotational basis for the shiftwork.

[61] It is appropriate that I provide Retro with an opportunity to provide the additional undertaking (in the required form) and to allow the AWU and the other employee bargaining representative to comment on any such undertaking. 18 Subject to consideration of those matters, I would intend to finally determine this application as a matter of some priority.

COMMISSIONER

Appearances:

D Lyons (with permission) and C Deighan for Retro Traffic Pty Ltd.

A Sage and A Callinan for the Australian Workers’ Union.

Hearing details:

2019

Sydney

22 March.

Printed by authority of the Commonwealth Government Printer

<PR706318>

 1   [2018] FWCA 7383.

 2   [2019] FWCFB 1068.

 3 Section 189 of the FW Act identifies the circumstances in which the Commission may approve an enterprise agreement that does not pass the BOOT; however, these are not relevant in this matter.

 4   [2017] FWCFB 1664.

 5   Sections 186, 187, 188 and 190.

 6 Appeal Decision at [44].

 7   Confirmed during the course of the hearing of this matter and later provided in writing as required by s.190 and Regulation 2.07.

 8   Witness statement of Ciaran Deighan, exhibit 1 in proceedings before the Full Bench.

 9   Summarised at [12] of the Appeal Decision.

 10 [2018] FCAFC 131.

 11 Ibid at [197].

 12 [2019] FCA 37 at [52].

 13   [2009] AIRCFB 50 at [44]. See also Master Builders Australia Limited [2013] FWC 4576 at [262].

 14   Clause 4.10(b) of the Award.

 15   Clause 4 Coverage.

 16   Set out in full at [15] of the Appeal Decision.

 17 Section 1903) of the FW Act.

 18 Section 190(4) of the FW Act.