Simon Godhard v Quicksilver Connections Ltd

[2024] FWC 1385

[2024] FWC 1385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Simon Godhard
v

Quicksilver Connections Ltd

(C2024/1049)

COMMISSIONER SIMPSON BRISBANE, 28 MAY 2024

Alleged dispute about any matters arising under the enterprise agreement and the NES.

1. On 21 February 2024, Mr Simon Godhard (the Applicant / Godhard) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute arising under the Quicksilver Connections AWU Enterprise Agreement 2018 (the Agreement). The Respondent in the matter is the Applicant’s employer, Quicksilver Connections Ltd (Quicksilver / the Respondent).

1. The matter was listed for private conference on 19 March 2024. Following the conference, directions were issued for the filing of evidence and submissions. At the conference, I expressed to the parties my intent to determine the matter on the papers, unless the material filed by the parties revealed any factual disputes. The parties agreed to this course of action.

1. The Applicant relied on his Form F10 application, written evidence and submissions filed on 25 March 2024, and submissions in reply filed on 8 April 2024. The Respondent relied on its initial response to the application and submissions filed on 3 April 2024. Having viewed the written material filed by the parties, I am satisfied that the dispute does not involve factual disputes that would warrant the conduct of a hearing in order to determine the matter. On that basis, I have concluded it is appropriate to determine the dispute on the papers, with the consent of the parties.

Question for Arbitration

1. The dispute relates to the calculation by the Respondent of payments for public holidays that are not worked by employees, in accordance with clause 6.8 of the Agreement. Clause 6.8.1 of the Agreement provides as follows:

“All full-time and part-time Employees paid the loaded hourly rate have had the public holiday penalty for work on such days included in their hourly rate, except for the following Significant Days:

Christmas Day – 25 December
New Year’s Day – 1 January
Easter Sunday
Anzac Day – 25 April”.

1. Clause 6.8.5 of the Agreement states:

“If you are a full time Employee on a loaded rate and a significant day falls on your rostered day off you will receive an additional days (sic) pay based on your daily hours ordinarily worked. Alternately you may agree to take time off in lieu with your Manager. This entitlement will be extended to part time Employees on a pro rata basis.”

1. Clause 6.8 in its totality reads as follows:

   “6.8 Public Holidays

   Loaded Rate Employees

   6.8. l All full-time and part-time Employees paid the loaded hourly rate have had the public holiday penalty for work on such days included in their hourly rate, except for the following Significant Days:

   Christmas Day - 25 December
   New Year’s Day- 1 January
   Easter Sunday
   Anzac Day - 25 April

   6.8.2 All full-time and part-time Employees paid the loaded hourly rate who work on New Year’s Day, Easter Sunday or Anzac Day will be paid 2.5 times their appropriate loaded hourly rate for a minimum of 4 hours. For Employees paid the loaded hourly rate who work on Christmas Day, they will be paid 3 times their appropriate loaded hourly rate for a minimum of 4 hours.

   6.8.3 Where practical and possible, all efforts will be made to rotate the rosters of Employees required to work on public holidays.

   6.8.4 If you are not required to attend work on a significant day which forms part of your rostered shift you will be entitled to payment for the day at your ordinary rate of pay.

   6.8.5 If you are a full time Employee on a loaded rate and a significant day falls on your rostered day off you will receive an additional days pay based on your daily hours ordinarily worked. Alternately you may agree to take time off in lieu with your Manager. This entitlement will be extended to part time Employees on a pro rata basis.

   Base Rate Employees

   6.8.6 All full-time and part-time Employees paid the base hourly rate who work on public holidays will be paid 2.5 times their appropriate base hourly rate, except on Christmas Day when they will be paid 3 times their appropriate base hourly rate, for a minimum of 4 hours. If you are not required to work on a public holiday which forms part of your rostered shift you will be entitled to payment for the day at your ordinary rate of pay.

   6.8.7 All efforts will be made to rotate the rosters of Employees required to work on public holidays.

   Casual Employees

   n_27_

   6.8.8 Casual Employees who work on public holidays will be paid 2.5 times their appropriate casual hourly rate for the Employee’s Classification Level except on Christmas Day when they will be paid 3 times their appropriate casual hourly rate for a minimum of 4 hours.”

1. Christmas Day 2023 and New Year’s Day 2024, both Mondays, fell on the Applicant’s rostered day off. His shifts for the Christmas and New Year period were for 9.5 hours. He received a payment of 7.6 hours for these two significant days.

1. The Applicant has been employed with the Respondent for approximately 19 years. He is currently employed as a dive instructor. He is paid a loaded rate, inclusive of the payments outlined in Clause 6.8.1 of the Agreement. Mr Godhard works a regular roster patten of 9.5 hours per day, 4 days per week, totalling 38 hours per week. The Applicant argues that as he ordinarily works a 9.5-hour day, Clause 6.8.5 of the Agreement entitles him to a pro-rata payment based on a 9.5-hour day on significant days that fall on a rostered day off.

1. Quicksilver opposes Mr Godhard’s application on the basis that the Applicant’s construction of Clause 6.8.5 would provide him an unfair enrichment compared to employees who work 38 hours per week over 5 days rather than 4. The Respondent argues that Clause 6.8.5 contemplates a payment based on the nominal daily hours worked, which for a full-time employee is 7.6 hours.

1. The question for arbitration is whether Mr Godhard’s “daily hours ordinarily worked” within the meaning of clause 6.8.5 of the Agreement is 9.5 hours or 7.6 hours.

Applicant’s submissions

1. In his originating application the Applicant said Clause 6.8.1 identifies which gazetted public holidays are classified as significant days for which penalty rates will apply. Clause 6.8.5 describes what pay an employee will receive if it falls on a rostered day off. The Applicant said the Respondent pays the amount on a pro-rata basis of the 4 weeks prior and says that a “day” is 7.6 hours using a model assuming 152 hours worked over a 4 week cycle and 5 days per week, and they accordingly pay a pro rata of a 7.6 hour day.

1. The Applicant said he accepts the decision in Mondelez Australia Pty Ltd v AMWU (Mondelez),[1] defines a day for annual leave and personal leave entitlements are based on a 7.6-hour day. The Applicant said his role for over 19 years, as a Scuba Diving Instructor, with the company principally involves working on a vessel engaging him for 9.5 hours work (7am until 5pm with half hour unpaid break) per day, with his current roster being 4 days per week.

1. The Applicant argued in his submission that Clause 6.8.5 of the Agreement defines a “day” or “a day’s pay”, as it states that the payment is “based on your daily hours ordinarily worked”. Accordingly, he claimed that he is entitled to a pro-rata payment based on a 9.5-hour day on significant days that fall on a rostered day off, as he ordinarily works a 9.5-hour shift. The material before the Commission indicates the Applicant only ever works shifts of 9.5 hours.

1. The Applicant submitted that the phrase, “based on your daily hours ordinarily worked” is unique to Clause 6.8.5 and does not appear elsewhere in the Agreement. Therefore, he argued that the clause, and the definition of a “day” and “a day’s pay” provided by the clause, is unique to the significant days, and should be preferred over any other definition of a “day”, including that provided in Mondelez as referenced by the Respondent.

1. Notions of unfairness or unjust enrichment were rejected by the Applicant. Mr Godhard stated that had he not been rostered off on a day he would ordinarily work, he would receive 9.5 hours’ pay, so it would be unfair if he did not receive 9.5 hours’ pay when he is not rostered on a significant day.

1. Mr Godhard disputed the Respondent’s argument that on a rostered day off, there are no predetermined ordinary hours. He argued that use of the word “ordinarily” in clause 6.8.5 means that the payment should be determined by reference to an employee’s reasonably predictable hours of work, which in his case is a 9.5-hour working day. This is supported by the fact that, as the Respondent pointed out, there are no daily hours ordinarily worked in respect of a non-rostered day. Therefore, for Clause 6.8.5 to have any work to do, it must be considered by reference to an employee’s individual work pattern.

1. Ultimately, the Applicant submitted that any payment he receives pursuant to Clause 6.8.5 should be based on a 9.5-hour working day, and his entitlements should be adjusted accordingly.

Respondent’s submissions

1. The Respondent submitted that Clause 6.8.5 does not have a plain meaning for the following reasons:

·   the Agreement does not define the meaning of a “day” or “a day’s pay”;

·   there are no daily hours ordinarily worked in respect of the significant day because it is a non-rostered day;

·   employees may work shifts of different durations throughout a roster cycle; and

·   there are no daily hours ordinarily worked that have universal application to the workforce.

1. As Clause 6.8.5 does not have a plain meaning, in accordance with the principles outlined in AMWU v Berri Pty Ltd,[2] the Respondent submitted that regard must be had to the surrounding circumstances. The Respondent contended that the purpose of the clause is to provide an additional financial benefit to employees not rostered to work on significant days. Absent the clause, the Applicant would not have been remunerated for Christmas Day 2023 and New Year’s Day 2024, as he was not rostered to work on those days. This is in contrast to clauses 6.8.2 and 6.8.4, which provide payment for employees who are rostered to work on significant days, or who would ordinarily work on significant days but have not been required to attend work.

1. The Respondent referred to Mondelez in which the High Court of Australia held that a “day”, for the purposes of s.96(1) of the Act in calculating entitlements to personal leave, “refers to a ‘notional day’, consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week (fortnightly) period”.[3] The Respondent submitted that this decision demonstrated the High Court’s intent to ensure fairness between employees working the same number of hours per week under differing roster patterns. In the Respondent’s view, a payment pursuant to Clause 6.8.5 based on a notional day of 7.6 hours provides fairness between all employees not rostered to work on a significant day.

1. Regarding the inclusion of the words “based on your daily hours ordinarily worked” in Clause 6.8.5, the Respondent argued that because an employee receiving a benefit under the clause is not rostered to work on a significant day, there are no daily hours ordinarily worked for that day. Therefore, in the context of the decision in Mondelez, the Respondent submitted that the “daily hours ordinarily worked” are a nominal day of 7.6 hours for a full-time employee.

1. If the Applicant’s construction were preferred, the Respondent argued the Applicant would receive an unfair entitlement compared to employees who ordinarily work five 7.6-hour days per week instead of four 9.5-hour days.

1. On that basis, the Respondent submitted that any payment Mr Godhard receives under Clause 6.8.5 should be based on notional 7.6-hour day.

Applicant’s Reply

1. The Applicant submitted in response to the Respondent’s submission that “there are no daily hours ordinarily worked in respect of the significant day because it is a non-rostered day” is misleading, because for the clause in contention to be relevant he obviously did not work that day, which is why the clause contains the words daily hours ordinarily worked. In response to the Respondent’s submission that “Accordingly, there are no daily hours ordinarily worked that have universal application to the workforce.”, the Applicant’s submission was to the effect that the Agreement covers hundreds of employees in different departments with different working hours and should be applied to each individual employee’s situation.

1. In response to the Respondent’s submission that the Applicant had “suffered no loss of work or pay”, the Applicant said Last Christmas day and New Years day were normal rostered days of work for him which typically would involve 9.5 hours work, and the fact that the company has decided to roster him off for those days and only paid him a pro-rata of 7.6 hours has caused him to suffer a financial loss.

Consideration

1. A Full Bench of the Fair Work Commission in AMWU v Berri Pty Ltd said as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12.  Evidence of objective background facts will include:

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

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

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

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

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

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

1. I am satisfied that the words “...based on your daily hours ordinarily worked..” in clause 6.8.5 has a plain meaning. The Macquarie Concise dictionary includes in its definition of the word Ordinary the following; “adj. 1. Such as is commonly met with; of the usual kind….. 3. Customary; normal: for all ordinary purposes……5. Something regular, customary, or usual. ……– ordinarily, adv.” The Macquarie Concise dictionary definition for Worked included the following: “..adj. that has undergone working;..”

1. The Applicant only ever works shifts of 9.5 hours. It is also correct that the phrase, “based on your daily hours ordinarily worked” does not appear elsewhere in the Agreement. It is sufficiently clear to me that the parties intended that an employee who is rostered off on a significant day should be put into the same position as if they would have been had they worked on that day they were rostered off. The words in the enterprise agreement clause 6.8.5 are different to, and distinguishable from the words in sections 96 and 99 of the FW Act that was the subject of deliberation in the High Court decision in Mondelez as referenced by the Respondent. The enterprise agreement in this case makes specific arrangements to apply in the case of four “Significant Days”.

1. I agree with the Applicant’s submission that the clause is intended to pertain to the circumstances of the individual employee concerned in the context of their own rostering arrangements, and the clause is not ambiguous for any of the reasons put by the Respondent. This interpretation does not deliver the Applicant an unfair or unjust enrichment, as he will only be in the same position as he would have been had he worked the day, as Mr Godhard stated that had he not been rostered off on the day he would ordinarily work, he would receive 9.5 hours’ pay. This is consistent with what clause 6.8.5 intends to achieve on Significant Days.

Conclusion

1. 
   The answer to the question for arbitration is that Mr Godhard’s “daily hours ordinarily worked” within the meaning of clause 6.8.5 of the Agreement is 9.5 hours.

COMMISSIONER

[1] [2020] HCA 29.

[2] [2017] FWCFB 3005.

[3] Mondelez at [45].

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