Shop, Distributive and Allied Employees Association v Officeworks Limited T/A Officeworks
[2021] FWC 4572
•17 SEPTEMBER 2021
| [2021] FWC 4572 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Shop, Distributive and Allied Employees Association
v
Officeworks Limited T/A Officeworks
(C2021/1643)
COMMISSIONER RIORDAN | SYDNEY, 17 SEPTEMBER 2021 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] On 24 March 2021, the Shop, Distributive and Allied Employees Associate (the Applicant) lodged an application (the Application) pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute settlement procedure. The dispute relates to full-time employees being rostered by Officeworks Limited T/A Officeworks (the Respondent) and working more than 19 shifts in a four-week cycle and the associated payment of overtime.
[2] A number of Conferences were conducted in this matter however the matter was unable to be conciliated and proceeded to arbitration. The matter was heard on 21 July 2021, by telephone.
Establishing Jurisdiction
[3] The relevant enterprise agreement is the Officeworks Store Operations Agreement 2019 (the OWEA). The dispute resolution procedure contained in Clause 18 reads as follows:
“18 RESOLUTION OF ISSUES
18.1 Defined Terms
…
18.2 Dispute Resolution Procedure
The following procedure for the avoidance or resolution of disputes between Officeworks and team members covered by this Agreement will apply:
18.2.1 In the first instance, the dispute will, wherever possible, be discussed by the affected Team Member and the manager at the work location concerned, with the joint intent of achieving a satisfactory outcome.
18.2.2 If the dispute remains unresolved, an appropriate representative of Officeworks, will assist in resolving the dispute. The Team Member may appoint a Representative at any stage to represent the Team Member in relation to the dispute, this may include officials from the unions covered by this Agreement.
18.2.3 Should the dispute still remain unresolved, a senior representative of Officeworks or another suitably authorised representative of Officeworks must become involved. The Team Member and/or their Representative will meet as required with the representative of Officeworks.
18.2.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Commission for Conciliation and/or Arbitration.
18.2.5 Fair Work Commission may deal with the dispute in 2 stages:
(a) The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) If the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
(i) Arbitrate the dispute; and
(ii) Make a determination that is binding on the parties.
18.2.6 Until the dispute is resolved, but subject to Officeworks’ responsibility to provide a safe and healthy working environment, all work will continue in accordance with the practices existing prior to the matter in dispute arising, or other agreed arrangements. No Party will be prejudiced as to the final settlement by the continuance or deferment of the work in accordance with this clause.
18.2.7 The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.
18.3 Conduct of the Parties
18.3.1 In order to facilitate this Resolution of Issues procedure:
(a) The Party with the dispute must notify the other Party at the earliest opportunity of the problem;
(b) Throughout all stages of the procedure all relevant facts must be clearly identified and recorded; and
(c) Sensible time limits must be allowed for completion of the various stages of discussion. However, the Parties must co-operate to ensure that the Resolution of Issues procedure is carried out as quickly as possible.”
[4] The dispute concerns a matter arising under the OWEA. There is no question that the matter was the subject of dispute at the workplace level. The Applicant is a party to the OWEA. 1 In the circumstances, I am satisfied that the Commission has the power to resolve the dispute by way of arbitration.
Relevant provisions of the Agreement
[5] The issue in contention in this matter is whether a full-time employee receives overtime rates of pay when they have been rostered to work on 20 days in a four week-cycle, they work on the 20th day, but have been absent from work on other days in the cycle, as outlined below.
[6] Full-time employees’ hours and variations to those hours are outlined at clause 17 of the OWEA as follows:
“17 TERMS OF EMPLOYMENT
17.1 Full – time Team Members
A full-time Team Member is a person employed by the week [subject to clause 25.2] to work 152 hours over a four-week cycle with a minimum daily engagement of 4 hours.
…
17.2.7 Variation
(a) Any agreement to vary the regular pattern of work will be made in writing before the varied hours commence. A variation under this subclause may be of a temporary (including ad-hoc or one off variations) or permanent nature. A part-time Team Member can elect to provide written standing consent to vary their regular pattern of work in order to work additional hours at the rates of pay specified in clause 11 .3 and 12, provided such standing consent may be withdrawn by the Team Member at any time. (To avoid doubt, a Team Member who provides standing consent can still verbally refuse to work additional hours when offered on any occasion.) Such a variation in writing may be made by electronic means (this will include E-mail and SMS).
(c) A record of the agreement and any variations to it (including by way of standing consent) will be retained by Officeworks and provided to the Team Member. This may be provided by electronic means as noted above.”
[7] Rostering principles are set out at clause 25 of the OWEA:
“25 ROSTERING PRINCIPLES
25.1 Hours per shift
A Team Member may be rostered to work up to a maximum of 9 hours on any day, exclusive of meal breaks or 11 hours once a week.
25.2 Days over a 28 day roster cycle
25.2.1 No full-time Team Member will be rostered to work more than 19 days in any 4 week roster cycle.
25.2.2 No part-time Team Member will be rostered to work more than 20 days in any 4 week cycle.
25.3 Days per week
25.3.1 For all team members rostered hours will be worked on not more than 5 days in each week, provided that rostered hours may be worked on 6 days in 1 week if in the following week rostered hours are worked on not more than 4 days.
25.3.2 Team members may be rostered to a maximum of 6 consecutive days in any fortnight.
25.4 Consecutive days off
Full-time and part-time team members will be rostered in such a way that they will receive at least 2 consecutive days off per week or 3 consecutive days off per fortnight.
25.5 Maximum hours
A Team Member will not be rostered to work more than 46 hours ordinary time in any 6 consecutive days, provided that they work no more than 30 hours in the following week. For clarity this means that team members can work 6 consecutive days, provided that in the following week they work no more than 4 consecutive days.
25.6 Sundays
Team members may be asked to work a maximum of 3 Sundays in 4 unless otherwise agreed, provided that on the Sunday they do not work they receive a three day break including Saturday.
25.7 Display of rosters
Rosters will be displayed 14 days in advance of the period to which they apply.
25.8 Break between shifts
A minimum break of 12 hours or 10 hours by mutual agreement will apply between the completion of work on 1 day and the commencement of work on the next day.
25.9 Rosters
25.9.1 Excluding casuals, rosters will, where practicable be set and posted on the noticeboard fortnightly in advance and can be changed:
(a) By 7 days' written notice;
(b) in the case of an emergency by 48 hours' notice for part-time Team Members, or
(c) at shorter notice by mutual consent.
Should a Team Member disagree with any roster change they will be provided with a minimum 14 days' written notice in lieu of the 7 days.
25.9.2 Subject to Clause 25.9.1 a Team Member will be provided with a regular roster which will not be subject to frequent variations.
25.9.3 When establishing or changing rosters, Officeworks will consider the reasonable availability of team members which will include family matters, study commitments and religious observances.
25.9.4 A team member's roster may not be changed with the intent of avoiding payment of penalties, loadings or other benefits applicable. Should such circumstances arise the Team Member will be entitled to such penalty, loading or benefit as if the roster had not been changed.
25.9.5 When team members are rostered across the span of hours as provided for at clause 23.2, Officeworks will have regard for whether or not the Team Member can arrange safe transport home.
25.10 Changes in Team Member roster availability
(a) Where a team member's availability to attend their current shift changes, Officeworks will endeavour to meet a team member's new availability when their availability to attend their current roster changes.
(b) If Officeworks is unable to accommodate all of the team member's desired changes, a decrease in the team member's base hours may result.”
[8] Overtime provisions are at clause 27:
“27 OVERTIME
27.1 Entitlement
27.1.1 Officeworks may require a Team Member to work reasonable overtime at appropriate overtime rates other than on a public holiday.
27 .1.2 A Team Member will be entitled to the payment of authorised overtime when:
(a) They are required to work before or after their rostered shift, (except for a part-time Team Member who has been offered and has accepted additional hours of work in accordance with Clause 17.2.7).
(b) A full-time Team Member works in excess of 152 hours in any 4 week cycle.
(c) A part-time Team Member works in excess of 144 hours in any 4 week cycle.
(d) A Team Member is required to work a non rostered shift (except in the circumstances provided for in Clause 25.9.1, or for a parttime Team Member who has been offered and has accepted additional hours of work in accordance with Clause 17 .2.7).
(e) A full-time Team Member works in excess of 19 days in any 4 week cycle.
(f) A part-time Team Member works in excess of 20 days in any 4 week cycle.
(g) A Team Member works in excess of 9 hours (excluding meal breaks) on any shift, provided that for one shift per week a Team Member can be rostered for 11 hours without attracting overtime.
(h) A Team Member works in excess or 5 days per week, or 6 days per week as provided for in clause 25.3.1.
(i) A T earn Member ( other than a shiftworker) who works outside the span of hours in clause 23.2.
j) A Team Member works in excess of the maximum hours per week in clause 25.5.
(k) A Team Member works in excess of six consecutive days in any fortnight.
(l) A Team Member does not have at least 2 consecutive days off per week or 3 consecutive days off per fortnight.
27.1.3 Officeworks will give consideration for a team member's availability when offering or requesting overtime to be worked.
27.2 Overtime will be paid at the following rates for full-time and part-time Team Members:
27 .2.1 Monday to Saturday: first 2 hours at 150%, and 200% thereafter,
27 .2.2 Sunday: 200%,
27.2.3 Public Holiday: 250%.
27.3 Overtime will be paid at the following rates for casual Team Members:
27.3.1 Monday to Saturday: first 2 hours at 175%, and 225% thereafter (inclusive of the casual loading),
27.3.2 Sunday: 225% (inclusive of the casual loading),
27.3.3 Public Holiday: 275% (inclusive of the casual loading).
27.4 Each day will stand alone (i.e., overtime will be treated on a daily basis and will be non-cumulative).
27.5 Time off in lieu of overtime
27.5.1 A permanent Team Member may elect to take time off in lieu of overtime
provided that:
(a) any such election is in writing,
(b) the time off will be calculated at the overtime equivalent,
(c) the Team Member will be entitled to a fresh choice of payment or time off on each occasion overtime is worked,
(d) unless otherwise agreed, time off must be taken on a mutually agreed date within one calendar month of the working of the overtime, or will be paid.”
Agreed Facts
[9] Ahead of the hearing in this matter, the Applicant filed a Statement of Agreed Facts, which provided the relevant background to the dispute as follows:
1. The Shop, Distributive and Allied Employees’ Association (SDA) has raised a dispute with Officeworks Limited (Officeworks) in accordance with the dispute settlement procedure under the Officeworks Store Operations Agreement 2019 (OWEA).
2. The dispute is regarding full-time employees covered by the OWEA being rostered and working more than 19 shifts in a four-week cycle and the associated payment of overtime.
3. Following discussions between the parties, the parties have agreed to narrow the scope of the dispute to the following question on the interpretation of the OWEA:
Does a full-time employee receive overtime rates of pay when they have been rostered for 20 days in a four week-cycle and they work on the 20th day, but have been absent from work on other days in the cycle?
4. Following the commencement of the OWEA on 4 November 2019, Officeworks have, on occasion, rostered full-time employees for 20 shifts per four-week cycle.
5. Where an employee has been rostered for 20 shifts but has been absent from work on one or more shifts during the four-week cycle, Officeworks have not paid overtime on the 20th shift in the cycle, including where employees have been absent due to:
(a) public holidays;
(b) annual leave;
(c) personal leave;
(d) compassionate leave;
(e) approved unpaid leave of absence; and
(f) unpaid absence due to illness.
Outline of the Applicant’s submissions and evidence
[10] As contained in the Agreed Facts above, the Applicant submitted that the question for the Commission to determine is:
Does a full-time employee receive overtime rates of pay when they have been rostered for 20 days in a four week-cycle and they work on the 20th day, but have been absent from work on other days in the cycle?
[11] The Applicant submitted that the answer to this question is ‘yes’, for the following reasons.
Full-time employees
[12] The Applicant submitted the dispute is confined to full-time employees covered by the OWEA. Full-time employees are defined at Clause 17.1 as follows:
“17.1 Full-time Team Members
A full-time Team Member is a person employed by the week [subject to clause 25.2] to work 152 hours over a four-week cycle with a minimum daily engagement of 4 hours.”
[13] The Applicant noted the OWEA provides rules for how employees can be rostered at Clause 25 - “Rostering Principles” - with sub-clauses 25.1, 25.2, 25.3, 25.4, 25.5, 25.6 and 25.8 placing restrictions on when employees can be rostered. The Applicant submitted that relevant to the current dispute, sub-clause 25.2.1 provides the maximum amount of days a full-time employee can work over a four-week cycle:
“25.2 Days over a 28 day roster cycle
25.2.1 No full-time Team Member will be rostered to work more than 19 days in any 4 week roster cycle.”
[14] The Applicant referred to the sub-clauses dealing with the setting of rosters, in particular: sub-clause 25.7, which requires the company to display rosters 14 days in advance; sub-clause 25.9, which provides rules around the setting and changing of rosters; and sub-clause 25.10, which deals with situations where an employee’s availability to attend their current rostered shifts changes. The Applicant submitted that these clauses are read with clause 19.2, which deals with consultation when there is change to regular roster or ordinary hours of work.
[15] With respect to payment of overtime, the Applicant referred to clause 27. Sub-clause 27.1 deals with when overtime is to be worked and paid, including a list of ‘triggers’ for when an employee is entitled to the payment of overtime rates of pay. Clause 27.1 reads as follows:
“27 .1 Entitlement
27 .1.1 Officeworks may require a Team Member to work reasonable overtime at appropriate overtime rates other than on a public holiday.
27 .1.2 A Team Member will be entitled to the payment of authorised overtime when:
(a) They are required to work before or after their rostered shift, (except for a part-time Team Member who has been offered and has accepted additional hours of work in accordance with Clause 17.2.7).
(b) A full-time Team Member works in excess of 152 hours in any 4 week cycle.
(c) A part-time Team Member works in excess of 144 hours in any 4 week cycle.
(d) A Team Member is required to work a non rostered shift (except in the circumstances provided for in Clause 25.9.1, or for a part-time Team Member who has been offered and has accepted additional hours of work in accordance with Clause 17 .2.7).
(e) A full-time Team Member works in excess of 19 days in any 4 week cycle.
(f) A part-time Team Member works in excess of 20 days in any 4 week cycle.
(g) A Team Member works in excess of 9 hours (excluding meal breaks) on any shift, provided that for one shift per week a Team Member can be rostered for 11 hours without attracting overtime.
(h) A Team Member works in excess or 5 days per week, or 6 days per week as provided for in clause 25.3.1.
(i) A Team Member (other than a shiftworker) who works outside the span of hours in clause 23.2.
(j) A Team Member works in excess of the maximum hours per week in clause 25.5.
(k) A Team Member works in excess of six consecutive days in any fortnight.
(l) A Team Member does not have at least 2 consecutive days off per week or 3 consecutive days off per fortnight.
27.1.3 Officeworks will give consideration for a team member's availability when offering or requesting overtime to be worked.”
(Applicant’s emphasis)
Construing the enterprise agreement
[16] The Applicant cited the relevant Full Bench authority for interpreting industrial agreements, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri). 2 The Applicant submitted that the Commission must objectively determine the common intention of the parties.3It submitted that construction begins with the ordinary meaning of the words, having regard to the text of the agreement as a whole and the legislative context in which it was made.4
[17] The Applicant submitted that the relevant authorities highlight that an interpreter of an industrial agreement must keep in mind the practical nature of industrial agreements. Construction should contribute to a sensible industrial outcome, 5 and “narrow or pedantic” approaches should be avoided, bearing in mind that the framers of the document “were likely of a practical bent of mind”.6 Words should be considered in the light of the customs of the particular industry.7
Overtime for non-rostered shifts
[18] The Applicant submitted that the current dispute surfaced after the Respondent scheduled full-time employees to work for more than 19 days in a four-week cycle, which it submitted is expressly prohibited under sub-clause 25.2.1 of the OWEA, but did not pay overtime for these additional shifts unless the employee physically attended work for more than 19 days in that cycle. The Applicant clarified that if a full-time employee was scheduled for 20 shifts, but was absent for one or more shifts in that cycle, overtime was not paid, regardless of whether the absence was for approved leave (such as personal leave, annual leave or public holidays).
[19] The Applicant submitted that the “sensible industrial outcome” from this dispute would be that a full-time employee working to a roster that exceeds 19 days in a four-week cycle should trigger a payment of overtime, regardless of whether an employee has taken leave during the cycle. It submitted that having regard to the Agreement as a whole and the industrial realities of full-time work, a considered reading of the overtime provisions confirms this position.
[20] The Applicant submitted that full-time employees’ ‘ordinary hours’ are 152 hours over a four-week cycle with a minimum daily engagement of four hours. Rostering of these hours is subject to the provisions of sub-clause 25.2, with sub-clause 25.2.1 placing a ‘strict prohibition’ on how a full-time employee can be rostered such that no full-time employee will be rostered to work more than 19 days in any four-week cycle. The Applicant submitted that where the Respondent provides a full-time employee with a work schedule that set 20 days to be worked, only 19 of those days can be considered rostered under sub-clause 25.2.1 and could form part of the employee’s ordinary hours. One of those 20 shifts must therefore be considered a non-rostered shift.
[21] The Applicant submitted that sub-clause 27.1.1 provides that the Respondent may require employees to work reasonable overtime, on the condition that appropriate overtime rates are paid. Therefore, the Respondent can reasonably require a full-time employee to work the twentieth shift, but the Applicant submitted this is as a ‘non-rostered shift’, payable at overtime rates in accordance with sub-clause 27.1.2(d). The Applicant submitted that providing an employee with 20 shifts is therefore permissible under sub-clause 27.1.1, provided overtime rates are paid on one of the shifts.
[22] The Applicant’s position was that the ‘sensible and logical’ way to apply which shift is the non-rostered shift is to apply it as it falls, being that the first shift that is not compliant with the rostering principles is the non-rostered shift. The Applicant submitted that, assuming all other rostering requirements for full-time employees have been met (noting sub-clauses 25.3, 25.4, 25.5 and 25.6), the twentieth shift becomes the non-rostered shift to which clause 27.1.2(d) applies.
[23] As to shifts ‘not worked’, the Applicant submitted that in a four-week roster cycle, there may be some days where an employee is rostered to work but has a right not to work. As an example, the Applicant noted that where an employee is sick and has accrued personal leave, they will be entitled to be absent on a day that they were rostered to work 8 and be paid “for the hours normally rostered to be worked” at the ordinary time rate.9 The Applicant submitted, similarly, when a public holiday falls, if the store is closed the employee is entitled to the day off and be paid “for the hours normally rostered to be worked”.10 If the store opens on the public holiday the employee has the choice to work or not, if they choose not to work they will be paid “for the hours normally rostered to be worked”.11 The Applicant submitted that the right to have the day off in these circumstances does not change the employee’s roster, rather it gives the employee the right to be absent on the day even though they had been rostered to work.
[24] Further, the Applicant submitted that even if leave is taken, the twentieth shift in the roster provided by the Respondent to the full-time employee remains the non-rostered shift; and the twentieth shift as a non-rostered shift is subject to overtime rates of pay in accordance with sub-clause 27.1.2(d).
Overtime for work in excess of 19 days
[25] The Applicant submitted that even if the Commission finds that overtime is not payable in the situation described above under sub-clause 27.1.2(d), overtime would be payable under sub-clause 27.1.2(e). The Applicant submitted that most of the overtime triggers in sub-clause 27.1.2 can be linked back to a specific prohibitive clause in the OWEA, which places a restriction on when work can be performed. The Applicant submitted that most of those restrictions are found in clause 25 and provided the below Table as a summary of each of the overtime triggers and its associated prohibitive clause:
[26] The Applicant submitted that the overtime triggers in sub-clause 27.1.2 are intended to give force to the prohibitive clauses earlier in the OWEA, by requiring payment of overtime rates of pay if the prohibitions are breached. Specifically, the Applicant referred to clause 27.1.2(e) as requiring payment of overtime when a full-time employee “works in excess of 19 days in any 4 week cycle”. The Applicant submitted the related prohibitive clause is sub-clause 25.2.1, which prohibits full-time employees being “rostered to work more than 19 days in any 4 week roster cycle”. The Applicant submitted that the “obvious distinction between the two” is that the overtime clause refers to when a full-time employee works in excess of 19 days and the prohibitive clause refers to when an employee is rostered in excess of 19 days.
[27] Regarding these clauses, the Applicant submitted that the difference in wording is understandable. A roster is defined as “a list of persons or groups with their turns or periods of duty”, with ‘rostered’ being the adjective. 12 The Applicant submitted that overtime rates cannot be payable based on a planned list, and can only be payable once it is worked. It submitted nevertheless, the purpose of the overtime trigger in sub-clause 27.1.2(e) is to give force to sub-clause 25.2.1. In order to give force to 25.2.1, leave days must be included in the calculation for time worked for the purpose of 27.1.2(e). If an employee is rostered for 20 days in a four-week cycle and works on the twentieth day, overtime must payable, even if the employee has been on leave earlier in the cycle. The Applicant submitted that to read it otherwise, as proposed by the Respondent, allows the company to breach the prohibition without any immediate consequence.
[28] The Applicant submitted that reading sub-clause 27.1.2(e) as only triggering overtime when an employee physically works more than 19 days in a four-week cycle, is a narrow and pedantic reading that ignores industrial realities. The Applicant submitted that it would be uncommon for employees to go through a four-week cycle without taking at least one day of leave, noting that public holidays fall in January, April, June, October and December, and further that full-time employees are entitled to ten days personal leave and four weeks annual leave per year. Other forms of leave such as compassionate leave or jury service may also arise at times. The Applicant submitted that excluding leave days from the calculation of time worked makes sub-clause 27.1.2(e) ineffectual.
[29] Therefore, on the above submissions, the Applicant’s position is that full-time employees under the OWEA who are rostered to work 20 days in four-week cycle are entitled to be paid overtime for work performed on the twentieth day, regardless of whether they been absent due to leave on previous days in the cycle.
Outline of the Respondent’s submissions and evidence
[30] The Respondent submitted that the answer to the question for determination by the Commission is ‘no’, for the following reasons.
Rostering of full-time employees
[31] The Respondent cited clause 17.1 of the OWEA, as providing a full-time employee’s hours over a four-week cycle. The Respondent submitted that clause 25 of the OWEA contains requirements for the Respondent to incorporate into its rostering practices, including at clause 25.2, the days in which it can roster full-time team members over a 28 day roster cycle:
“25.2 Days over a 28 day roster cycle
25.2.1 No full time Team Member will be rostered to work more than 19 days in any 4-week roster cycle”.
[32] In relation to overtime, the Respondent referred to clause 27, and in particular as relating to this dispute, subclause 27.1.2 which states:
“27.1.2 A Team Member will be entitled to the payment of authorised overtime when:
…
(d) A Team Member is required to work a non rostered shift (except in the circumstances provided for in Clause 25.9.1, or for a part-time Team Member who has been offered and has accepted additional hours of work in accordance with Clause 17.2.7).
(e) A full-time Team Member works in excess of 19 days in any 4 week cycle.”
(Respondent’s emphasis)
Overtime for non-rostered shifts
[33] The Respondent submitted that the Applicant’s first argument relates to clause 27.1.2(d) of the OWEA, which provides team members with an entitlement to be paid overtime when they work a non-rostered shift. The Respondent summarised the Applicant’s position as being that, if the Respondent provided a full-time employee with a ‘work schedule’ that set 20 days to be worked, only 19 of those could be considered ‘rostered’, and the twentieth shift would be ‘non-rostered’ because of clause 25.2.1. That is, the Applicant’s submission is that shifts which appear on a roster are ‘non-rostered shifts’.
[34] The Respondent submitted that this analysis does not withstand scrutiny. It submitted that a ‘work schedule’, as described by the Applicant, is a roster. The shifts designated on that ‘work schedule’/roster, are ‘rostered shifts’. The Respondent submitted that, by contrast, a shift which does not appear on that roster is a ‘non-rostered shift’. It submitted it is a “simple binary distinction”.
[35] The Respondent submitted that it provides a roster to its in-store team members at least 14 days in advance of the period in which the roster applies. 13 This roster is displayed in store on the notice board in the team room,14 and shows the day and the start and finish times for each shift the team member has been rostered to work during the 14 day period.15 The Respondent submitted that any shift that appears on this roster is considered to be a rostered shift under the OWEA.
[36] The Respondent confirmed that a team member may be asked to work a non-rostered shift when another team member has called in sick to work and their shift needs to be covered. 16 The Respondent submitted that a full-time team member would generally not be asked to work a non-rostered shift as this would interfere with their rostered days off;17 however, if a full-time team member is asked to work a non-rostered shift they would be paid overtime in accordance with clause 27.1.2(d) of the OWEA “(unless any of the circumstances provided for in clause 25.9.1 of the Officeworks EA apply)”.18
Construing the meaning of “non-rostered shift”
[37] The Respondent agreed that the principles relating to interpretation of enterprise agreements are well established, and begin with the ‘ordinary meaning of the relevant words’. 19The Respondent cited the Macquarie Dictionary, which defines the noun ‘roster’ as “a list of persons or groups with their turns or periods of duty” and the verb as “to put on a roster; to list.” The Respondent submitted that on a common-sense interpretation of subclause 27.1.2(d), any shift that appears on the roster given to a team member is a ‘rostered shift’ and in contrast, a non-rostered shift is any shift that does not appear on their roster.
[38] The Respondent cited the decision in Construction, Forestry, Maritime, Mining and Energy Union v AGL Loy Yang Pty Ltd (AGL), 20 in which Deputy President Colman was required to determine whether clause 7.1 of the AGL Loy Yang Enterprise Agreement 2017 gave a shift worker an overtime entitlement where they had taken personal leave “on the immediately preceding rostered shift”. In his decision, the Deputy President provided commentary on the meaning of a “rostered shift”, which the Respondent submitted illustrates that a shift will be considered to be rostered if it is a shift on which the team member was rostered to work. Relevantly, the Deputy President found:
“[18] Secondly, on the union’s construction, when clause 7.1 is triggered, the employee is ineligible for overtime on the next single shift. This is a clear, discrete, and easily identifiable circumstance. If the clause were only concerned with this particular situation, it could simply have called it out: where a shift worker does not provide a medical certificate for a personal leave absence, he or she is ineligible for overtime on the next shift. Instead, clause 7.1 establishes a framework for eligibility for overtime generally (not just on the next shift), and does so by looking back to what has occurred on the ‘immediately preceding rostered shift’. This too points to the conclusion that rostered shift means a shift on which the employee was rostered to work.”
(Respondent’s emphasis)
[39] The Respondent relied on the Macquarie Dictionary definition of ‘roster’ and Deputy President Colman’s comments in AGL, and submitted it is clear that a ‘rostered shift’ is one in which a team member is rostered to work in accordance with a published roster. The Respondent submitted that as to the current dispute, regardless of whether a team member covered by the OWEA has been rostered to work more than 19 days, the twentieth day cannot be considered to be a non-rostered shift for the purposes of subclause 27.1.2(d) of the OWEA. The Respondent submitted that there is no mechanism under the OWEA that converts this shift from a rostered shift to a non-rostered shift, and to read this requirement into the agreement would be illogical and conflict with the ordinary and well understood meaning of the term ‘rostered shift’. The Respondent submitted therefore, clause 27.1.2(d) has no relevance to the question for arbitration. Its position is that the twentieth day is rostered, is not ‘non-rostered’, and clause 27.1.2(d) has no work to do.
Overtime for work in excess of 19 days
[40] The Respondent submitted that a team member covered by the OWEA is not entitled to accrue overtime under subclause 27.1.2(e) unless they physically attend work for 20 days in a four-week cycle. The Respondent submitted that central to the current dispute, is the interpretation of the term ‘works’ in subclause 27.1.2(e) of the OWEA. It submitted that in order to answer the question before it, the Commission is required to consider whether a team member can be considered to ‘work’ while being physically absent from the workplace due to:
(a) public holidays;
(b) annual leave;
(c) personal leave;
(d) compassionate leave;
(e) approved unpaid leave of absence; and
(f) unpaid absence due to illness.
Construing the meaning of “works”
[41] The Respondent submitted that the starting point in construing the term ‘works’ is the “ordinary meaning of the relevant words”. 21 The Respondent submitted that the ordinary meaning of the word “works”, and its singular form “work”, have previously been considered by the Commission, and other courts and tribunals.
[42] In this regard, the Respondent cited the decision in Transport Workers’ Union of Australia v Jetstar Services Pty Limited, 22 in which the Commission was required to determine whether Jetstar ground crew employees were entitled to have periods of personal and other leave, which fall during a pay week or roster cycle, taken into account when calculating overtime payments under clause 17 of the Jetstar Services Agreement 2016. In that decision, Deputy President Sams found that periods of leave should not be included for the purposes of calculating overtime under the agreement. When considering the words ‘works’ or ‘worked’ in accordance with the principles of enterprise agreement interpretation, the Deputy President found that:
“[46] In my view, with these principles steadily borne in mind, the words ‘works’ or ‘worked’ in the context of cl 17 of the Agreement are not ambiguous, uncertain, or capable of more than one meaning. The word ‘works’ or ‘worked’ must mean being physically at work and performing work or other functions associated with work, at the employer’s direction.
…
[49] … I cannot see how it is possible or logical that ‘work’ includes periods where no tasks are undertaken and nothing is made or done for the benefit of the employer. Axiomatically, this must include periods of annual leave, personal leave and other leave.
…
[53] The origin and evolutionary extension of annual and long service leave was to recognise that workers require reasonable periods of time away from work to recover from the physical and/or psychological impacts of work and be able to spend quality time at leisure or on holidays with family or friends; in other words, activities undertaken in a private capacity. To my mind, this is the very antitheses to being ‘at work’, using ‘exertion to produce or accomplish something’.
[54] Similarly, a worker’s entitlement to access personal leave for sickness or injury or to care for a sick or injured family member, is respectively because the worker has no capacity for ‘work’ or to be ‘at work’. In my opinion, it is difficult to reconcile the notion of ‘work’ with the very opposite notion of incapacity to work or an inability to attend for work because of carer’s responsibilities.”
(Respondent’s emphasis)
[43] The Respondent cited the decision in CFMMEU v Brisbane Container Terminals, 23in which Deputy President Asbury was required to determine the way in which leave entitlements are treated under the relevant agreement dealing with the constitution of working hours. As part of this decision Deputy President Asbury was required to determine the meaning of ‘work’ in the relevant agreement. The Deputy President found:
“[79] Given that the Agreement does not deem leave to be work, there is no reason why the term “work” should not be given its ordinary meaning of an employee being physically at work undertaking duties or tasks for the benefit of the employer. For these reasons, I have concluded that on the plain meaning of the text of the relevant Roster Rules, employees who take leave after they have expended the 1560 annual hours by working or while on agreed leave, are not entitled to overtime payments provided for in Roster Rule 4 for such leave. Rather, employees who take leave either before or after they have met the 1560 annual hours commitment, are paid for such leave at the Level 1 ordinary rate.”
(Respondent’s emphasis)
[44] The Respondent also cited the decision in United Voice v Wilson Security, 24 in which Commissioner Gregory was required to determine whether an employee who attended a paid training session when he was not otherwise rostered to attend work, and who had already worked in excess of 38 hours that week, was entitled to overtime. As a part of this decision, Commissioner Gregory was required to determine whether ‘training’ is considered hours ‘worked’ for the purpose of triggering an overtime payment under the relevant agreement. The Commissioner found that:
“[63] I am satisfied, in adopting this approach, that it is appropriate at the outset to make a distinction between time spent in training and time spent in work. There are two reasons why I believe it is reasonable to make this distinction. Firstly, time spent in training and time spent in work involve two different activities. This is not to say those activities are not related. However, time spent at work involves participation in the duties an employee has been engaged to perform and carry out.”
(Respondent’s emphasis)
[45] The Respondent noted that while decided in a different context, the Full Federal Court of Australia’s decision in Warramunda Village Inc v Pryde 25 provides useful guidance on the meaning of ‘work’. In this case the Full Court was required to consider whether employees covered by the applicable award were engaged in ‘work’ when they performed sleepover shifts, as instructed by their employer. The Respondent cited the decision of Justice Lee at paragraph [17] as follows:
“[17] An employee who attends at the place of employment pursuant to the employer’s direction to be at the employer’s premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at “work” for the purposes of the 1995 Award and is entitled to be remunerated according to the terms of the Award.”
[46] The Respondent noted that Justice Finkelstein, who was in agreement with Lee J, stated that:
“[37] …the words “work” or “worked” when used in provisions such as cl 13 and cl 15 do not bear the meaning assigned to them by the appellant. The authorities show that when such words are used in instruments of the type presently under consideration, what is referred to is an employee who is under the instruction of an employer: the time under instruction is time worked.”
[47] Further to the above authorities, the Respondent submitted that in the current dispute and in the context of the OWEA, ‘work’ and ‘works’ has a plain meaning readily accepted by the layperson. In this regard, it quoted the Macquarie Dictionary, which defines ‘work’ as:
1. Exertion directed to produce or accomplish something; labour; toil.
2. That on which exertion or labour is expended; something to be made or done; a task or undertaking.
3. Productive or operative activity… 26
[48] With reference to the use of the word ‘work’ in subclause 27.1.2(e) of the OWEA, the Respondent submitted the word ‘work’ should be interpreted to mean a period of time when the team member is physically present at work, or performing work, or other functions associated with work, at the Respondent’s direction. The Respondent submitted ‘work’ does not include periods of leave, therefore team members employed under the OWEA are not entitled to overtime under subclauses 27.1.2(e), unless they have actually attended work for 20 days during the four-week cycle.
[49] The Respondent submitted that on the proper interpretation of the word ‘work’ for the purposes of subclause 27.1.2(e), ‘work’ will usually involve the employee being physically present at the employer’s premises; that is, ‘actually working’. The Respondent submitted that it is clear from the relevant authorities that ‘work’ does not include a period where the employee is on leave, with leave being considered the opposite to work.
[50] The Respondent submitted that subclause 27.1.2(e) of the OWEA only provides an overtime entitlement to a team member who has physically attended work for 20 days during a four-week cycle; and days absent from work do not count towards the calculation of those 20 days.
[51] The Respondent denied that this interpretation and application is narrow or pedantic.
The Respondent submitted that this interpretation reflects the practical application of the OWEA and what was agreed between the parties.
[52] In summary of its position, the Respondent submitted that full-time team members employed under the OWEA who are rostered to work 20 days in a four-week cycle are not entitled to overtime for work performed on the twentieth day, unless they have actually attended work for twenty days during the four-week cycle. The twentieth day a team member is rostered cannot be considered a non-rostered shift under clause 27.1.2(d) of the OWEA if the shift is listed on the team member’s roster. The Respondent submitted that periods of leave do not count for the purpose of calculating a team member’s overtime entitlement under subclause 27.1.2(e) of the OWEA, as these periods do not constitute ‘work’, regardless of whether the employee has been rostered to perform 20 days’ work within the four week cycle. Therefore, it submitted the answer to the question for arbitration is ‘no’.
[53] The High Court of Australia released its much anticipated decision in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Mondelez) 27 on 13 August 2021. Whilst this decision is not entirely on point, I allowed the parties an opportunity to provide submissions in relation to this decision. The Applicant submitted that the Mondelez decision was not relevant to this case. The Respondent argued that the decision of the majority and that of Gageler Jsupported their interpretation of the term ‘work’.
Consideration
[54] Whilst the courts have recently reinforced the relevant principles that a Court and Tribunal should follow when interpreting enterprise agreements, the most concise and comprehensive decision which collated all of the historical precedent was the Commission’s Full Bench decision in Berri 28 where the Full Bench enunciated 15 principles:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
i. the text of the agreement viewed as a whole;
ii. the disputed provision’s place and arrangement in the agreement;
iii. the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
i. evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
ii. notorious facts of which knowledge is to be presumed; and
iii. evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[55] Relevantly, the High Court in Mondelez identified and confirmed a number of principles relevant to this case, namely:
“22. As s 96(2) states, an entitlement to paid personal/carer's leave accrues progressively in the course of a year of service, for all employees, by reference to ordinary hours worked and not by reference to days or working patterns. All employees working the same number of ordinary hours accrue paid personal/carer's leave at the same rate and, after working the same number of ordinary hours, are entitled under s 99 to be paid for the same number of ordinary hours, regardless of whether their ordinary hours over a two-week period are worked across ten, six, or five days in that period. Under ss 96, 97 and 99, the taking of accrued paid personal/carer's leave is calculated in the same manner. For each hour of accrued paid personal/carer's leave which is taken, the accrued entitlement is reduced by the actual number of hours taken, regardless of the employee's pattern of work.
…
25. It is necessary to address other aspects of the Fair Work Act. As explained above, its objects include "providing workplace relations laws that are fair to working Australians, [and] are flexible for businesses", and "ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the [NES]". Neither of those objects detracts from the significance of an employee's ordinary hours of work as the mechanism for determining the loss of earnings that the employee is protected against. The notion of fairness encompasses fair treatment as between employees according to their ordinary hours of work, regardless of the pattern in which those hours are worked. Fairness and enforceability may both be served by employers and employees both being able to know, at any point in time, precisely how much paid personal/carer's leave an employee has accrued.
26. The "notional day" construction also conforms with the Fair Work Act more broadly. First, the similarity of language and concepts in the paid personal/carer's leave scheme in Subdiv A of Div 7 of Pt 2-2 and the paid annual leave scheme in Div 6 reflects that "10 days" (in s 96(1) in respect of paid personal/carer's leave) and "4 weeks" or "5 weeks" (in s 87(1) in respect of paid annual leave) progressively accrue according to an employee's "ordinary hours of work" and are cashed out in the same way.
27. Second, within Subdiv CA of Div 7 of Pt 2-2, which addresses unpaid family and domestic violence leave, s 106E states that "[w]hat constitutes a day of leave for the purposes of this Subdivision is taken to be the same as what constitutes a day of leave for the purposes of section 85 and Subdivisions B and C". Section 106E recognises that "day" has a different meaning in Subdiv A of Div 7 (which addresses paid personal/carer's leave) from those provisions dealing with unpaid pre-adoption leave, unpaid carer's leave, compassionate leave, and unpaid family and domestic violence leave. In those provisions referred to in s 106E, a "day" is not calculated according to an employee's ordinary hours of work. Rather, they authorise an absence for the portion of the 24-hour period that would otherwise be allocated to working. That is unsurprising. Unlike paid personal/carer's leave, none of the types of leave mentioned in s 106E accrues according to an employee's ordinary hours of work. And unlike paid personal/carer's leave, none of the types of leave mentioned in s 106E is paid (except compassionate leave).
…
30. The Explanatory Memorandum described the operation of the scheme in these terms:
"The concept of an employee's ordinary hours of work is central to the paid personal/carer's leave entitlement as it determines the rate at which the entitlement accrues and also the entitlement to payment when leave is taken.
General principles
Leave accrues according to an employee's ordinary hours of work (which may be set out in a modern award or enterprise agreement, or are calculated in the manner set out in clause 20). Such hours are often expressed as a number of hours per week. In effect, therefore, the Bill ensures an employee will accrue the equivalent of two weeks' paid personal/carer's leave over the course of a year of service.
Although this is expressed as an entitlement to 10 days (reflecting a 'standard' 5 day work pattern), by relying on an employee's ordinary hours of work, the Bill ensures that the amount of leave accrued over a period is not affected by differences in the actual spread of an employee's ordinary hours of work in a week.
Therefore, a full-time employee who works 38 hours a week over five days (Monday to Friday) will accrue the same amount of leave as a full-time employee who works 38 ordinary hours over four days per week. Over a year of service both employees would accrue 76 hours of paid personal/carer's leave[.]
Similarly, the requirement to pay an employee for their absence on the basis of their ordinary hours of work for the period of the absence means that the employee is entitled to be paid for his or her ordinary hours of work on the days in the week they would have worked but for being absent from work on paid personal/carer's leave (ie, excluding overtime)." (emphasis added)”
(my emphasis)
[56] I previously worked a 72 hour fortnight back in the 1980’s when working as an electrical fitter/mechanic, where I was required to insert a card into a bundy clock every morning and afternoon to prove my start and finish times. As a result, I understand how the RDO system works. An employee works additional hours every day to accrue time to have the additional day of leisure in every roster cycle. If the employee is required to work on their RDO, then the employee is entitled to be paid overtime because they have already worked their required maximum hours through the accrued time worked over the previous shifts of their roster cycle. If an employee has taken leave without pay, then clearly they would not have accrued the required amount of additional time to be paid for their full week.
[57] For employees who work a 19-day month, in relation to the National Employment Standards (the NES) provision on Annual Leave (section 87(1) and (2)), they actually accrue 19 days of Annual Leave a year, not 20.
[58] Relevantly, Part 2-2 Division 3 of the Act identifies the maximum hours for employees in accordance with the NES. It is not in dispute that the NES are minimum standards which cannot be traded away. Section 62 of the Act states:
“Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee--38 hours; or
(b) for an employee who is not a full-time employee--the lesser of:
(i) 38 hours; and
(ii) the employee's ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee's personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee's role, and the employee's level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee's employer; or
(b) by or under a term or condition of the employee's employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.”
(my emphasis)
[59] I note the clarity proscribed by section 62(4) of the Act, namely, that “the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised…”.
(my emphasis)
[60] This section of the Act is on point for this dispute. It states quite clearly that any authorised leave is regarded as time worked for the purposes of determining whether an employee has worked their maximum hours of work. Therefore, in this circumstance, if an employee was rostered on day 4 of their cycle to work 9 hours but took a day of annual or personal leave instead, as long as that day was authorised, as defined, then those 9 hours count as hours worked for the purposes of calculating an employee’s hours at work during a roster cycle. In all likelihood, the employee would have accrued their 152 hours for the roster before the 20th shift. The 20th shift, therefore, would be paid at overtime rates.
[61] In the recent decision in Mondelez, the High Court of Australia determined what is meant by the term ‘day’ in the Act in relation to an employees annual entitlement of 10 days personal leave per year. Adopting the principles and obiter in Mondelez, employees covered by the OWEA would be entitled to 76 hours of personal leave per year. Any personal leave taken by an employee, would be paid and deducted as per the roster to ensure that employees receive their base rate of pay. If the employee normally works 19 shifts at 8 hours per day in a cycle, then the employee would be paid 8 hours for the day of personal leave, not 7.6 (76 hours / 10 days). This ensures that the employee continues to accumulate the additional time necessary to have their RDO on the 20th day of their roster cycle and continues to accrue annual leave, personal leave, etc at their normal rate of accrual.
[62] Section 87 of the Act provides for the NES entitlement for employees to Annual Leave:
“87 Entitlement to annual leave
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to:
(a) 4 weeks of paid annual leave; or
(b) 5 weeks of paid annual leave, if:
(i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or
(ii) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or
(iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).
Note: Section 196 affects whether FWA may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.
Accrual of leave
(2) An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
Note: If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.”
(my emphasis)
[63] An employee accrues annual leave for every hour worked (see section 87(2) above). It is not in dispute that an employee accrues annual leave whilst on annual leave, personal leave and sick leave. The OWEA states that full-time employees only receive 4 weeks of annual leave per year. There is no capacity under the OWEA for an employee to receive more than 4 weeks unless they satisfy the requirements of section 87(1)(b) of the Act in relation to shiftworkers. As a result, an employee who takes a day of annual leave and is then required to work on a 20th day during a roster period is disadvantaged compared to an employee who does not take annual leave. It would appear that the employee who took the leave accrues the same amount of annual leave for this 4-week period as the employee who worked their 19 day roster (see s.62(4)). This scenario would be in breach of the NES and contrary to the obiter in Mondelez.
[64] If it is fair and appropriate for the High Court to have this view in relation to hours and the length of shifts, this obiter can be extrapolated in the present case to the number of shifts. It would be unfair and illogical to suggest that an employee, who accesses their paid leave for a shift or a number of shifts within a 19-day month cycle, would be recognised for having been at work on these days for every provision in the Act and the OWEA except for clauses 25 and 27 of the OWEA. Such an outcome, in the words of the majority in Mondelez, “would give rise to an absurd result and an inequitable outcome”.
[65] In the circumstance where an employee took a single day of paid leave in a roster cycle but was then required to work on the 20th day, that employee would be working in breach of the NES because the NES only allows for 152 hours in a four week cycle to be paid at single time.
[66] Further, the employee would be penalised in comparison to their work colleague who did not take accrued paid leave, who was also working on the 20th day of the cycle. That employee would be paid overtime in accordance with the provisions of the OWEA. To have 2 employees working in the same store on the same roster pattern being paid either single time or overtime based on their taking of paid leave is an industrial absurdity. Such an outcome is certainly at odds with the decisions in City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union 29 and Kucks v CSR Limited.30
Conclusion
[67] There is no difference, at law, of an employee who is physically at work or on paid leave. An employee on paid leave still accrues the same benefits of an employee at work, ie:-
• the employee is paid their normal weekly wage;
• the employee continues to accrue annual leave, sick leave and long service leave at the same calculated rate;
• the employee continues to receive Superannuation Guarantee Levy contributions from the employer; and
• the employee continues to accrue time for their RDO.
[68] I find that clause 25.2.1 of the OWEA is concise and unambiguous. There is a prohibition on rostering full-time employees for more than 19 shifts in a four-week cycle. If a full-time employee is required to work in excess of 19 shifts in a cycle, then they are to be paid overtime (clause 27.1.2(e)).
[69] In relation to the Applicant’s submission in relation to unrostered shifts, I do not accept that the 20th shift which appears on an employee’s roster is an ‘unrostered shift’. Such a submission is illogical. The rostered shift on the 20th day is a rostered overtime shift and attracts overtime in accordance with clause 27.1.2(e) of the OWEA.
[70] The decision of Deputy President Asbury in CFMMEU v Brisbane Container Terminals can be distinguished on the facts. This case involved the stevedoring industry, which works a very complicated rostered system with no set hours of work or roster system. In this case, employees were trying to get paid overtime rates for their annual leave by requesting annual leave after they had completed the maximum number of weekly hours in their roster. Her Honour found that such a practice was basically ‘double dipping’.
[71] In Transport Workers’ Union of Australia v Jetstar Services Pty Limited (Jetstar), Deputy President Sams found that the term ‘work’ should be given its dictionary definition on the basis of the many and varied uses of the term throughout the Jetstar Agreement. Further, the overtime clause lacked specificity in that it also applied to casual employees. That is not the case with this Agreement. The disputed provisions only apply to full-time employees – there is no possible leakage or correlation to casual employees.
[72] If I am wrong and Jetstar cannot be distinguished on the facts, then, put simply, I disagree with the decision of the Deputy President. An employee who takes paid leave, for any part of a day, week or month, has always been considered to ‘be at work’. That is why that employee continues to accrue or be paid their normal entitlements, such as, wages, annual leave, sick leave and superannuation. To suggest that an employee has to be physically ‘at work’ is illogical, unfair and contrary to the legislative purpose of a ‘fair go all round’.
[73] Further, the Respondent has failed to provide any documentation which shows how this provision was explained to its employees in a manner which is outsidethe traditional industrial practice and understanding where a day of paid leave is deemed to be a day of work.
[74] At paragraph [26] of Mondelez, the High Court correlated the issues of ‘ordinary hours of work’ and the accrual of annual leave and personal leave. Paragraph [25] reinforces the notion of fairness to ensure fair treatment between employees according to their ordinary hours of work. It is not possible for fairness or equity to be provided to employees, based on section 62 of the Act, if one employee is required to work, as defined, more than 19 shifts in a roster cycle in order to qualify for overtime on their 20th shift simply because they have accessed authorised leave during that roster cycle. Such an outcome is unfair, illogical, absurd and inequitable.
[75] In relation to the agreed question identified in paragraph [9] above, if the leave has been authorised in accordance with section 62 of the Act, I find that the answer is yes, the full time employee is entitled to be paid overtime for working on the 20th shift in a 4-week roster cycle.
[76] I so Order.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR732245>
1 [2019] FWCA 6900 at [2].
2 [2017] FWCFB 3005 at [114].
3 Ibid.
4 Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182.
5 Amcor Limited v CFMEU [2005] HCA 10; (2005) 222 CLR 241 at 270 per Kirby J.
6 Kucks v CSR Limited (1996) 66 IR 182 at 184.
7 James Cook University v Ridd [2020] FCAFC 123 at [65]; City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-379.
8 The OWEA at sub-cl 30.1.1(a).
9 Ibid at sub-cl 30.1.2(d).
10 Ibid at sub-cl 28.5.1.
11 Ibid at sub-cl 28.6.
12 Macquarie Concise Dictionary, (5th ed, 2009) ‘roster’.
13 Witness statement of Heidi Dorman, dated 16 July 2021 at [5].
14 Ibid at [5].
15 Ibid at [6].
16 Ibid at [8].
17 Ibid at [9].
18 Ibid.
19 AMWU v Berri[2017] FWCFB 3005 at [114].
20 [2018] FWC 4874.
21 AMWU v Berri[2017] FWCFB 3005 at [114].
22 [2017] FWC 2535.
23 [2019] FWC 3908.
24 [2015] FWC 2507.
25 [2002] FCA 250.
26 Macquarie Dictionary, online version, < ; accessed 7 July 2021.
27 [2020] HCA 29.
28 [2017] FWCFB 3005.
29 (2006) 153 IR 426.
30 (1996) 66 IR 182.
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