The Australian Workers Union v De Costi Seafoods Pty Ltd
[2022] FedCFamC2G 179
Federal Circuit and Family Court of Australia
(DIVISION 2)
The Australian Workers Union v De Costi Seafoods Pty Ltd [2022] FedCFamC2G 179
File number(s): SYG 952 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 18 March 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – Seafood Processing Awards – meaning of ordinary hours – meaning of day worker – meaning of shift worker – whether dayworkers are shiftworkers – whether dayworkers who work outside spread of ordinary hours are entitled to penalty rates – principles of construction and interpretation – contravention of s.45 of the Fair Work Act 2009 (Cth) – applicant wholly successful. Legislation: Fair Work Act 2009 (Cth) ss.45, 545, 546, 547
Seafood Processing Award 2010
Seafood Processing Award 2020
Cases cited: Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249
City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813
City of Wanneroo v Holmes [1989] FCA 553
Dunford v Allen Taylor & Company [1990] FCA 474
Kucks v CSR Limited [1996] IRCA 141
Short v FW Hercus Pty Ltd [1993] FCA 72
Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No.3) [2019] FCA 3
Number of paragraphs: 86 Date of hearing: 31 May 2021 Place: Parramatta Counsel for the Applicant: Mr Slevin Solicitors for the Applicant: The Australian Workers Union Counsel for the Respondent: Ms Raper SC with Mr Fuller Solicitors for the Respondent: Edge Legal
Table of Corrections 14 February 2023 At paragraph [31], delete the word ‘penalty’ and insert the word ‘overtime’.
At paragraph [61], delete the word ‘penalty’ and insert the word ‘overtime’.
At paragraph [68], delete the word ‘penalty’ and insert the word ‘overtime’.
At paragraph [69](d), delete the word ‘penalty’ and insert the word ‘overtime’.
At paragraph [71], delete the word ‘penalty’ and insert the word ‘overtime’.ORDERS
SYG 952 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THE AUSTRALIAN WORKERS UNION
Applicant
AND: DE COSTI SEAFOODS PTY LTD (ACN 606 307 804)
Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
18 March 2022
THE COURT ORDERS THAT:
1.Within 14 days, the parties are to provide to the Court a short minute of order to give effect to these Reasons for Judgment.
2.The matter is listed for directions in respect of penalty at 10:15am on 8 April 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
Introduction
The applicant, the Australian Workers Union (“AWU”), brings this claim on behalf of two employees, Ms Elisapeta Tuala (“Ms Tuala”) and Mr Suman Pokharel (“Mr Pokharel”) (collectively “the employees”). Both Ms Tuala and Mr Pokharel are employed on a full-time basis by the respondent De Costi Seafoods Pty Ltd (“‘De Costi Seafoods”).
Over the period of Ms Tuala’s and Mr Pokharel’s employment, two modern awards applied, namely the Seafood Processing Award 2010 (“2010 Award”) and the Seafood Processing Award 2020 (“2020 Award”). The 2010 Award applied until 3 February 2020, after which date the 2020 Award applied.
Ms Tuala and Mr Pokharel generally work Monday to Friday commencing between 3am-4.30am and finishing between 11am -12.30pm, respective to the start time. Neither Ms Tuala nor Mr Pokharel generally work more than 38 hours per week.
The applicant contends that the respondent has contravened a term of a modern award, contrary to s.45 of the Fair Work Act 2009 (Cth) (“the FWA”) by failing to pay overtime payments to Ms Tuala and Mr Pokharel in respect of hours worked before 6am.
The issue for determination is whether Ms Tuala and Mr Pokharel are “day workers” for the purposes of the relevant industrial awards, and therefore entitled to be paid overtime rates for hours worked before 6am, namely for hours outside the span of ordinary hours.
Relevant Facts
De Costi Seafoods is a seafood processing company, and a wholly owned subsidiary of Tassal Group Limited (“Tassal”), a publicly listed company. De Costi Seafoods has a processing facility at Lidcombe NSW, where it mainly processes fresh salmon and prawns. De Costi Seafoods have a range of customers, from large supermarket chains to small sushi chains.
The operating hours of the De Costi Seafoods’ Lidcombe facility are consequent upon two main factors, namely the arrival of fresh produce and customers’ delivery and ordering times, and shelf-life specifications. Practically, these factors require production and dispatch from the Lidcombe facility to be early in the morning.
Both Ms Tuala and Mr Pokharel are employed in the position of Seafood Processing Attendant, and work on the production line at the Lidcombe facility.
Ms Tuala has been employed by De Costi Seafoods since 31 October 2016. She works in accordance with a roster, with her starting time usually commencing at 4am or 5am. On some occasions Ms Tuala is required to start at 3am. Ms Tuala works in the “Set Weight” section which is a production line involving a sequence of steps from point of delivery, filleting, weighing to packing.
Ms Tuala’s contract of employment with De Costi Seafoods includes the following:
6. Ordinary Hours of Work 38 hours per week and 7.6 hours per day worked Monday to Friday in accordance with a roster which is distributed on a weekly basis.
8(b) Overtime Rates Overtime is calculated on the Base Rate of pay in accordance with the Industrial Instrument.
8(c) Shift Loading A shift loading will be paid when working Afternoon and Night Shifts on your Base Rate of pay in accordance with the Industrial Instrument.
13. Industrial Instrument Seafood processing Award 2010
Mr Pokharel has been employed by De Costi Seafoods since 19 February 2018. Like Ms Tuala, he too works in accordance with a roster with his starting time usually commencing at 3am or 4am. On occasions, Mr Pokharel is required to start at 2.30am. Mr Pokharel works in the packing section.
Mr Pokharel’s contract of employment with De Costi Seafoods includes terms which are identical to the terms of Ms Tuala’s contract of employment with De Costi Seafoods noted at paragraph [10] above.
De Costi Seafoods employees who work in the Packing and Set Weight areas are informed of their “upcoming shifts” a week in advance. It appears that all such employees work in accordance with a weekly roster, where their hours of work are set by management. The decision regarding the number of employees and their starting and finishing times in the Packing and Set Weights areas are informed by the weekly production schedule.
Prior to the COVID-19 pandemic, “there were overlapping shifts at the Lidcombe site”. De Costi Seafoods’ evidence speaks to employees working a “morning shift” and an “afternoon shift” with typical start and finish times. The evidence goes on to say:
16. Full-time employees on the ‘morning shift’ would typically start at 4am and 5am and work for 8 hours through until 12pm or 1pm…
17. Another 15 to 20 employees would typically start at 6am and work an 8-hour shift through to 2pm.
18. Full-time employees on the ‘afternoon shift’ would typically start between 9am and 10am and work through until 5pm or 6pm… the ‘afternoon shift’ could end up around 9pm or later if it was a particularly busy period…
Due to the COVID-19 pandemic, De Costi Seafoods has incorporated a number of safety measures, which has resulted in production finishing at later times than it did pre-pandemic. There are now “two shifts with no overlap”, and De Costi Seafoods still refers to them as “morning shift” and “afternoon shift”. The terms “morning shift” and “afternoon shift” used by De Costi Seafoods prior to the pandemic bear no relevance to the terms used in the two awards.
Relevant Legal Principles
The principles in respect of award interpretation are well settled:
53. The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘… the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘… ideas that gave rise to an expression in a document from which it has been taken’ – Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).
..
57. It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities: City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and the cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned.
(City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813)
It is justifiable to read the award to give effect to its evident purposes, having regard to the relevant industry and industrial relations environment, despite mere inconsistencies or infelicities of expression which might tend to some other reading. Meanings which avoid inconvenience or injustice may reasonably be strained for (Kucks v CSR Limited (1996) IR 182; [1996] IRCA 141 at [184]). However, Madgwick J went on to further hold:
A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
Relevant Award Provisions
While the wording of the two awards are slightly different, the effect of the provisions relating to overtime is, in all relevant respects, the same.
Part 5 of the 2010 Award is headed “Hours of Work and Related Matters”, and relevantly it sets out the following:
(a)Clause 23 deals with “Ordinary hours of work and rostering”;
(b)Clause 24 deals with “Special provisions for shiftworkers” and
(c)Clause 26 deals with “Overtime”.
The 2020 Award has a different set-up, and one needs to consider different parts of the award in order to ascertain the relevant matters, namely Part 3 which is headed “Hours of Work” and Part 5, which is headed “Overtime and Penalty Rates” including:
(a)Clause 13 deals with “Ordinary hours of work and rostering”;
(b)Clause 19 deals with “Overtime”; and
(c)Clause 20 deals with “Penalty rates and shiftwork”.
The relevant provisions of both awards are reproduced in Annexure “A” to these Reasons for Judgment.
The clauses central to the applicant’s claim are as follows:
(d) Any work performed outside the spread of hours must be paid for at overtime rates. However, any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose, for example, of getting the plant in a state of readiness for production work is to be regarded as part of the 38 ordinary hours of work.
[cl. 23.2(d) 2010 Award]
and
(g) Any work performed outside the spread of hours must be paid for at overtime rates in accordance with clause 19 – Overtime. However, any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose, for example, of getting the plant in a state of readiness for production work is to be regarded as part of the 38 ordinary hours of work but still paid at overtime rates.
[cl.13.2(g) 2020 Award]
As noted earlier, the relevant clauses and sub-clauses are reproduced in Annexure “A”. The fact of reproducing only a part of the relevant clauses in the paragraph immediately above, should not be understood as the Court only having regard to those particular words. The Court has had regard to all relevant matters.
What the parties each submit
The parties agree that the “spread of hours” for “ordinary hours” for “day workers” are 6am to 6pm. The parties agree that there is no agreement between the respondent and the employees to alter the spread of hours. The parties disagree as to whether in order to be a day worker for the purposes of the awards an employee must ordinarily work the spread of hours.
According to the respondent, a day worker is defined by reference to their ordinary hours of work , and is an employee whose ordinary hours:
(a)are an average of 38 hours per week but not exceeding 152 hours in 28 days;
(b)may be worked on Monday to Saturday, and may include a Sunday subject to agreement; and
(c)are worked continuously at the discretion of the employer, between 6am to 6pm (known as the spread of hours). The spread of hours may be altered by agreement by up to one hour at either end of the spread.
Put simply according to the respondent, because Ms Tuala and Mr Pokharel habitually commence work prior to 6am, they do not ordinarily work the spread of hours and therefore, they are not day workers. Rather, the respondent submits, Ms Tuala and Mr Pokharel are “non-continuous shiftworkers”, who work a “rostered shift” and are not the subject to any overtime rates or shift allowances.
The applicant submits that Ms Tuala and Mr Pokharel are day workers for the purposes of the awards (they are neither afternoon or night shift workers) The applicant contends that under the awards the employees are entitled to be paid overtime for all hours worked before 6am because the awards provide that “[a]ny work performed outside the spread of hours must be paid for at overtime rates”. According to the applicant, this is the end of the matter.
Determination
It is not necessary to go beyond the words of the awards to determine the present dispute of whether Ms Tuala and Mr Pokharel are entitled to be paid at overtime rates for hours worked prior to 6am.
The employees’ respective contracts of employment are silent on the award classification which each of Ms Tuala and Mr Pokharel fall within. That is, the employees’ contracts of employment do not identify the employees as either “day workers” or “shiftworkers”. Their contracts refer to ordinary hours, and make reference to shift allowances if they work afternoon shift or night shift. There is no “spread of hours” or ordinary hours of work which are identified in the contracts of employment.
The focus in the awards is on ordinary hours, overtime rates and shift allowances, and their application to employees who are day workers and shift workers.
The awards rather clumsily and without any clear delineation or definition, differentiate between a “day worker” and “shiftworkers”. Ultimately however, the Court determines for reasons set out herein, that the employees are day workers for the purposes of the awards, and as such are entitled to overtime rates for the hours worked prior to 6am.
What is a “roster”?
The evidence is that both Ms Tuala and Mr Pokharel are subject to regular weekly rosters which are decided by the respondent. That is, the hours which Ms Tuala and Mr Pokharel work are set by the respondent.
The Macquarie Dictionary (3rd Edition) defines “roster” as:
A list of persons or groups with their turns or periods of duty.
Neither award defines either the term “roster” or “rostering”.
What is a “day worker”?
“Day worker” is not defined anywhere in the two awards.
However, in both awards under the heading “Ordinary hours of work and rostering” (Part 5, cl.23 2010 Award and Part 3, cl.13 2020 Award) exist sub-clauses which set out what the ordinary hours of work for a day worker are.
Part 5 of the 2010 Award contains the provisions relating to ordinary hours of shift workers as well as day workers together, whereas the 2020 Award has separated the ordinary hours of shift workers to a different part which is headed “Overtime and penalty rates”.
The awards do not delineate between a day worker and a shift worker by reason of any “rostering” or a “roster”. That is, even though the relevant main heading “Ordinary hours of work and rostering” in both awards refers to “rostering” there is no reference to rosters or rostering within the relevant sub-clauses dealing with ordinary hours of work for “day workers”.
The references to “rosters” and “rostering” in the awards appear in the sub-clauses dealing with “shiftworkers”, which is discussed further below. The employees are subject to a roster set by De Costi Seafoods, which might suggest that they are shiftworkers simply because there is no reference to rosters for dayworkers in the awards. This would be an oversimplification. In order to know when they are to come into work, the employees are rostered on.
Pursuant to cl.23.5(a) of the 2010 Award and cl.13.6(c) of the 2020 Award which are both headed “Methods of arranging ordinary working hours”, an employer has the right to fix the daily hours of work for day workers from time to time within the spread of hours referred to in cl.23.2(c) of the 2010 Award and cl.13.2(b), (c), (d) of the 2020 Award, and a right to fix the commencing and finishing time of shifts from time to time. This is so not to differentiate between dayworkers and shiftworkers, but rather to ensure that the business in question is able to operate and that there are a sufficient number of employees at work to be able to carry out the work required by the employer.
What is a “shiftworker”?
“Shiftworker” is not defined anywhere in the two awards. However, there are special provisions for “shiftworkers” in the 2010 Award (cl.24) which are reproduced under the heading “Penalty rates and shiftwork” in the 2020 Award (cl.20).
Only four types of shiftworkers are defined in the awards:
(a)“rostered shift” means any shift where at least 48 hours’ notice has been given (cl.24.1 2010 Award, cl.20.3 2020 Award);
(b)“afternoon shift” means any shift finishing after 6pm but before midnight (cl.24.1 2010 Award, cl.20.3 2020 Award);
(c)“night shift” means any shift finishing after midnight but before 8am (cl.24.1 2010 Award, cl.20.3 2020 Award); and
(d)“Continuous shiftwork” means work carried out with consecutive shifts of employees through the 24 hours (of each of at least 6 consecutive days) (cl.23.3(a) 2010 Award and cl.13.3 2020 Award).
“Non-continuous shiftwork” is not defined (cl.23.4 2010 Award and cl.13.4 2020 Award). However it could only mean shiftwork other than that which is defined as “continuous shiftwork”. Likewise, “non-rostered shift” is not defined, but it could only mean a shift which is not a rostered shift, and might include someone being called-in to work at very short notice.
The various definitions work together to provide for shift allowances for those who work afternoon and/or night shifts, depending on whether their place of employment works on a continuous or a non-continuous basis and depending on whether the worker has received at least 48 hours’ notice of their shift.
Are Ms Tuala and Mr Pokharel “day workers”?
There is no provision in the awards for any shift allowance for workers who are rostered and who work “continuous shiftwork” but do not work either the afternoon shift or the night shift. This is important because the definition of continuous shift work requires “consecutive shifts of employees throughout the 24 hours…” (cl.23.3(a) 2010 Award and cl.13.3(a) 2020 Award). The respondent argues that if shiftworkers were limited to only those working afternoon and night shift, the only way to structure continuous shiftwork would be to have at least one shift that is 10 hours or longer to bridge the gap.
One way to deal with this conundrum, identified in paragraph [45] above, is to consider “day workers” as shiftworkers for the purposes of filing in the gap.
If looked upon in this manner, then a place of employment where there is continuous shift work would be covered by the day shift (i.e. the “day workers”), the afternoon shift and the night shift. There is no need for any other shift, and certainly no undefined/special morning shift in order to have a workplace operate continuously.
This in effect, is the interpretation that the applicant contends for, that is, “that shiftworkers are employees who work shifts as identified in the awards, i.e. as day workers, afternoon shift workers or night shift workers.” It is an interpretation supported by Dunford v Allen Taylor & Company [1990] FCA 474 at [33], where it was held that:
… each of these employees was a "shiftworker" within the ordinary meaning of that word, including when working from 6am to 1.36pm. It is true that this period would be a "day shift" and that cl.18 does not contain a definition of "day shift". But this is because it was unnecessary to provide such a definition. The concepts of "afternoon shift" and "night shift" were only important for provisions dealing with people working outside usual hours; for example cl.18(a)(ii). The day shift substantially corresponds with the working hours of an ordinary day worker.
Another and alternative way to deal with this conundrum, identified in paragraph [45] above, is to recognise that the relevant awards do not limit the types of shifts to those which are defined in the penalty provisions in the awards (Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No.3) [2019] FCA 3; (2019) 284 IR 97 (“Swissport”) at [114]-[116]). This is the interpretation the respondent contends for. Swissport however, dealt with a different set of circumstances, different awards, and differently worded award clauses, and it involved the question of part-time shiftworkers who were working split shifts.
The fact that De Costi Seafoods does not operate its processing facility at Lidcombe on a continuous basis is not relevant for the purposes of the questions which need to be answered pertaining to Ms Tuala and Mr Pokharel.
A further difficulty with the interpretation of the awards in question is to consider what might happen to a hypothetical employee who is rostered in a similar manner to Ms Tuala and Mr Pokharel, but instead of the hypothetical employee’s shift commencing earlier than 6am (as is the case here) it regularly concludes after 6pm. Is that hypothetical employee then a “day worker” and entitled to penalty rates or is that hypothetical employee then an “afternoon shift” worker?
When asked the question about an employee who might hypothetically work till 7pm, the respondent submitted that such a scenario would result in the relevant employee being classified as a dayworker, on the basis that “if they ordinarily work between 6am and 6pm” and from time to time they work to 7pm then they remain dayworkers (T:59 line 5).
It is not clear why this is so given the definition of an afternoon shift worker, namely any shift finishing after 6pm but before midnight. It does not have to be a rostered shift, it is any shift. If such an employee would in the respondent’s eyes be a dayworker, why then are not Ms Tuala and Mr Pokharel?
If such a hypothetical employee was a “day worker” he/she would be subject to penalty rates for hours worked after 6pm.
In this hypothetical scenario such an employee might be an “afternoon shift” worker rather than a “day worker” entitled to penalty rates, and as such entitled to a shift allowance, because it is a shift that finishes after 6pm.
Either way, the hypothetical employee would get the benefit of a higher and different pay to the hours worked between 6am and 6pm.
If similar logic is applied to the present circumstances, while seemingly unfair (as there is no shift allowance for a shift which commences early in the morning), it might stand to reason that Ms Tuala and Mr Pokharel are then shift workers, who are rostered and non-continuous, but are not the subject of any shift allowance (or indeed penalty rates). Such an interpretation, is however rejected.
Clauses 23.2(d) and 13.2(g) of the 2010 Award and the 2020 Award respectively, specifically contemplate for dayworkers commencing work prior to 6am. This speaks against defining a dayworker by reference to someone who ordinarily works only between 6am and 6pm.
If a worker commences their shift at 6am or later, it is easy to envisage a situation where the worker might be asked to stay back and work overtime, such that they finish after 6pm. In such a situation their ‘shift’ finishes at 6pm but they would work overtime hours after 6pm.
For a day worker to start prior to 6am there would have to be a request of that worker to come in early at some stage prior to when the worker is due to commence work before 6am, being the ordinary spread of hours. That is, they might be rostered to start prior to 6am with notice, or they might be asked to come in at very short notice. But there is still a request to start earlier than 6am. Their ‘shift’ would start before 6am.
This is clearly what cl.23.2(d) of the 2010 Award and cl.13.2(g) of the 2020 Award contemplate by specifically mentioning early starts and ensuring that workers who are required by their employer to start prior to 6am and work continuously, for the purpose of getting the plant ready for production (or for some other purpose an example of which is not provided), are nevertheless paid overtime rates for hours prior to 6am, even if they do not work more than 38 hours per week (and as such, would not ordinarily be entitled to overtime rates).
Each of the awards provide for ordinary hours to be worked by those who work an “afternoon shift” or a “night shift”, as they do for those who work as a day worker, albeit the ordinary hours of work for those workers who work shiftwork are not defined by a spread of hours, except in so far as finishing times are set out, not their starting times.
The fixing of ordinary hours to between 6am and 6pm for dayworkers is not to be understood as limiting what a day worker is, but is to be understood as directing the rate of pay for hours which are not within the ordinary hours. It is not that day workers must ordinarily work those hours, it is that the span of hours between 6am and 6pm is to be paid at the ordinary rate, not at penalty rates.
The payment for overtime for Ms Tuala and Mr Pokharel will not necessarily lead to a higher penalty for morning work than afternoon or night shift work as the hypothetical scenario at [51] demonstrates, the hypothetical employee would have the benefit of overtime if classified as a dayworker, or alternatively be entitled to a shift allowance.
The crux of the respondent’s argument is focused on differentiating between day workers and shift workers by reference to what the employee’s ordinary hours of work might be, a focus which is unwarranted on a plain reading of the awards.
On a reading of the awards as a whole, it is clear that “ordinary hours of work” for dayworkers are those hours which are not subject to overtime rates. This is the purpose of the term “ordinary hours of work”; it is to differentiate between the ordinary rate of pay and the overtime rates which are applicable to hours worked outside the “ordinary hours of work”. It is not to say that in order to be a day worker, an employee must ordinarily work between 6am and 6pm.
If all of the relevant award clauses are read together, that is to inform one another, taking into consideration that the award also provides for continuous and non-continuous shifts, that is that for plants that operate for 24 hours non-stop and those that do not, it is clear that a day worker can and does include an employee who habitually commences work prior to 6am.
Clause 23.2(d) of the 2010 Award and cl.13.2(g) of the 2020 Award must be read together with the other clauses and can only be used to give context and meaning to the award as a whole. It is included to clarify rather than to exclude. What it does, is to make clear for those employees who come in prior to 6am and work continuously that they are not only entitled to overtime rates for those early morning hours that form part of their ordinary 38 hours, but that they are also entitled to overtime rates for all work outside the 38 hours.
This is consistent with the way that the rest of the award is drafted, namely that:
(a)If an employee works after 6pm but finishes before midnight they are an afternoon shift worker and entitled to a shift allowance;
(b)If an employee works after midnight but finishes before 8am they are a night shift worker and entitled to a shift allowance;
(c)If they get less than 48 hours’ notice of their shift they are entitled to be paid further overtime rates; and
(d)If they commence work prior to 6am or work after 6pm (the spread of hours) they are entitled to overtime rates as a dayworker for those hours worked outside the spread of hours.
Both the 2010 Award and the 2020 Award when read properly, make clear that any work performed outside the ordinary spread of hours by day workers is to be paid at overtime rates.
Ms Tuala and Mr Pokharel are therefore best described as “day workers” subject to overtime rates for hours worked outside of “ordinary hours”.
This interpretation is also supported by the industrial context.
Relevant industrial context
The history of the 2010 Award is helpfully set out in the applicant’s outline of submission, as follows:
The Seafood Processing Awards were a product of the modern award making process. The history of the shift provisions in the Awards includes:
a. The Seafood Processing Awards did not have a single predecessor award that was specific to the seafood processing industry.
b. The Commission regarded food manufacturing as an appropriate stream for the consideration of the modern award making process, seafood processing was considered within that stream.
c. Employer representatives sought a separate award for seafood processing industry a request that was acceded to by the Commission.
d. Exposure drafts were considered for two awards in the food manufacturing stream; the Seafood Processing Award and the Food Manufacturing Award.
e. Deliberations concerning the Seafood Processing Award involved the inclusion of an afternoon and night shift and included a proposal by Tassal Group Ltd, the parent company of De Costi, that the span of hours for dayworkers be extended to begin at 4.00 am and finish to 8.00 pm.
f. The Commission did not accede to this request, making the span of hours for dayworkers 6.00 am to 6.00 pm.
g. By contrast the Commission inserted into the Food Manufacturing Award a definition of a shift additional to the afternoon and night shift being an early morning shift commencing between 3.00 am and 5.00 am.
h. The shiftwork provisions in the Seafood Processing Award reflected the Modern Manufacturing Award. The history of the Modern Manufacturing Award is that it was derived from the 1998 metal industry award which included a preamble to its shiftwork provisions stating that they applied to afternoon and night shift work.
The respondent does not take issue with the history as set out. However, the respondent submits that references to aspects of the award modernisation process do not assist in construing the relevant provisions, and furthermore submits that the award modernisation process was a lengthy one involving competing exposure drafts and submissions from many parties with varying interests. The Court accepts the submission that the award as ultimately made cannot be viewed as an accession to or rejection of any particular submission, unless that was expressly stated by the Commission.
However, this does not mean that the industrial context is not relevant and that the history of the award making process is not relevant. Both are relevant.
The award history shows that the notion of a morning shift was rejected. Furthermore, the final award retained the span of hours for day workers from 6am to 6pm. This is in circumstances where Tassal had proposed the span of hours to be from 4am to 8pm. While this might not overtly say anything about an employer’s capacity to implement a shift falling outside the defined afternoon and night shifts, it likewise does not say anything against the interpretation argued for by the applicant, but rather inferentially supports it.
Tassal has entered into Enterprise Bargaining Agreements (EBA) approved by the Fair Work Commission (“the FWC”), in regard to the seafood processing industry. Such EBA expressly provide for morning shifts and provide for penalty rates payable on these shifts. As De Costi Seafoods is an associated entity of Tassal such EBA apply to them (Tassal Operations Pty. Ltd., Tassal Operations Pty. Ltd. Triabunna Processing Enterprise Agreement 2019).
While expressly disagreeing with the applicant’s interpretation of the relevant awards in relation to the applicability of overtime rates for employees such as Ms Tuala and Mr Pokharel, Tassal provided modelling which showed that the EBA meet the better off overall test in that the early morning shift penalty for an entire shift where work commences before 5am (but not before 3am), as against the overtime rates for portion of shift (for a day worker) worked before 5am based on the modelling done, would see the employee better off by about 3.67%.
The industrial context of the awards, the history of awards, the existence of enterprise agreements which depart from the awards and provide for morning shifts, and the conduct of the respondent in making an agreement providing expressly for a morning shifts supports the applicant’s position that the awards do not operate such that employees required to work early morning starts are shift workers.
Conclusion
In relation to Ms Tuala’s employment, De Costi Seafoods contravened the 2010 Award from 31 October 2016 to 3 February 2020 and the 2020 Award from 4 February 2020 onwards, by failing to pay Ms Tuala overtime for the hours she worked before 6am.
In relation to Mr Pokharel’s employment, De Costi Seafoods contravened the 2010 Award from 19 February 2018 to 3 February 2020, and the 2020 Award from 4 February 2020 onwards, by failing to pay Mr Pokharel overtime for hours he worked before 6am.
The respondent has therefore contravened s.45 of the Fair Work Act 2009 by failing to pay overtime payments to the employees in accordance with the relevant modern awards.
De Costi Seafoods is to pay Ms Tuala and Mr Pokharel their unpaid overtime entitlements, including interest up to judgment, pursuant to ss.545(1) and 547 of the FWA.
The matter will be listed to determine what penalty is to be imposed on De Costi Seafoods for contravening the relevant awards pursuant to s.546 of the FWA.
It is appropriate in the circumstances, for a minute of order to be prepared by the parties reflecting the Court’s reasons herein.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 18 March 2022
APPENDIX “A”
Relevant Award Extracts
2010 Award
Part 5—Hours of Work and Related Matters [2010 Award]
23. Ordinary hours of work and rostering [2010 Award]
[Varied by PR994482]
23.1 Maximum weekly hours and requests for flexible working arrangements are provided for in the NES.
23.2 Ordinary hours of work—day workers [2010 Award]
(a) Subject to clause 23.5, the ordinary hours of work for a day worker are an average of 38 per week but not exceeding 152 hours in 28 days.
(b) The ordinary hours of work may be worked on any day or all of the days of the week, Monday to Saturday, provided that a day worker must not be required to work more than five and a half days of ordinary hours in a week. The days on which ordinary hours are worked may include Sunday subject to agreement between the employer and the majority of employees concerned. Agreement in this respect may also be reached between the employer and an individual employee.
(c) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (6.00 am to 6.00 pm) may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or, in appropriate circumstances, between the employer and an individual employee.
(d) Any work performed outside the spread of hours must be paid for at overtime rates. However, any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose, for example, of getting the plant in a state of readiness for production work is to be regarded as part of the 38 ordinary hours of work.
(e) The rate to be paid to a day worker for ordinary time worked before noon on a Saturday is 125% and after noon on a Saturday is 150%.
(f) Where agreement is reached in accordance with clause 23.2(b), the rate to be paid to a day worker for ordinary time worked between midnight on Saturday and midnight on Sunday is 200%.
(g) A day worker required to work on a public holiday must be paid for a minimum of three hours’work at the rate of 250%. The 250% rate must be paid to the employee until the employee is relieved from duty.
23.3 Ordinary hours of work—continuous shiftworkers [2010 Award]
(a) Continuous shiftwork means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption except for breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer.
(b) Subject to clause 23.3(c), the ordinary hours of work for a continuous shiftworker are, at the discretion of the employer, to average 38 hours per week inclusive of meal breaks and must not exceed 152 hours in 28 consecutive days. A continuous shiftworker is entitled to a 20 minute meal break on each shift which must be counted as time worked.
(c) By agreement between the employer and the majority of employees concerned, a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days but does not exceed 12 months.
(d) Except at the regular changeover of shifts, an employee must not be required to work more than one shift in each 24 hours.
23.4 Ordinary hours of work—non-continuous shiftworkers [2010 Award]
(a) Subject to clause 23.4(b), the ordinary hours of work for a non-continuous shiftworker are an average of 38 per week and must not exceed 152 hours in 28 consecutive days.
(b) By agreement between the employer and the majority of employees concerned, a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days but does not exceed 12 months.
(c) The ordinary hours of work must be worked continuously, except for meal breaks, at the discretion of the employer.
(d) Except at changeover of shifts an employee must not be required to work more than one shift in each 24 hours.
23.5 Methods of arranging ordinary working hours [2010 Award]
(a) Subject to the employer’s right to fix the daily hours of work for day workers from time to time within the spread of hours referred to in clause 23.2(c) and the employer’s right to fix the commencing and finishing time of shifts from time to time, the arrangement of ordinary working hours must be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned. This does not preclude the employer reaching agreement with individual employees about how their working hours are to be arranged.
(b) The matters on which agreement may be reached include:
(i) how the hours are to be averaged within a work cycle established in accordance with clauses 23.2, 23.3 and 23.4;
(ii) the duration of the work cycle for day workers provided that such duration does not exceed 12 months;
(iii) rosters which specify the starting and finishing times of working hours;
(iv) a period of notice of a rostered day off which is less than four weeks;
(v) substitution of rostered days off;
(vi) accumulation of rostered days off;
(vii) arrangements which allow for flexibility in relation to the taking of rostered days off; and
(viii) any arrangements of ordinary hours which exceed eight hours in any day but not exceeding 12 hours in a day or shift.
(c) By agreement between an employer and the majority of employees in the enterprise or part of the enterprise concerned, 12 hour days or shifts may be introduced subject to:
(i) proper health monitoring procedures being introduced;
(ii) suitable roster arrangements being made;
(iii) proper supervision being provided;
(iv) adequate breaks being provided; and
(v) a trial or review process being jointly implemented by the employer and the employees or their representatives.
(d) Where an employee works on a shift other than a rostered shift, the employee must:
(i) if employed on continuous work, be paid at the rate of 200%; or
(ii) if employed on other shiftwork, be paid at the rate of 150% for the first three hours and 200% thereafter.
(e) Clause 23.5(d) does not apply when the time is worked:
(i) by arrangement between the employees themselves;
(ii) for the purposes of effecting the customary rotation of shifts; or
[23.5(e)(iii) varied by PR994482 from 01Jan10]
(iii) on a shift to which the employee is transferred on short notice as an alternative to standing the employee off in circumstances which would entitle the employer to deduct payment in accordance with Part 3-5 of the Act.
23.6 Daylight saving [2010 Award]
(a) Where by reason of State or Territory legislation summer time is prescribed as being in advance of the standard time in that state, the length of any shift commencing before the time prescribed by the relevant legislation for the commencement of a summer time period or commencing on or before the time prescribed by the relevant legislation for the termination of a summer time period, is deemed to be the number of hours represented by the difference between the time recorded by the clock at the beginning of the shift and the time so recorded at the end of the shift. The time of the clock in each case is to be set to the time fixed by the relevant legislation.
(b) The terms standard time and summer time have the same meaning as in the relevant State or Territory legislation.
23.7 Make-up time [2010 Award]
(a) An employee may elect, with the consent of the employer, to work make-up time under which the employee takes time off during ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in this award.
(b) An employee on shiftwork may elect, with the consent of their employer, to work make-up time under which the employee takes time off during ordinary hours and works those hours at a later time, at the rate which would have been applicable to the hours taken off.
24. Special provisions for shiftworkers [2010 Award]
24.1 For the purposes of this award:
(a) rostered shift means any shift of which the employee concerned has had at least 48 hours’ notice;
(b) afternoon shift means any shift finishing after 6.00 pm and at or before midnight; and
(c) night shift means any shift finishing after midnight and at or before 8.00 am.
24.2 By agreement between the employer and the majority of employees concerned or in appropriate cases an individual employee, the span of hours over which shifts may be worked may be altered by up to one hour at either end of the span.
24.3 Afternoon and night shift allowances [2010 Award]
(a) An employee who works on afternoon or night shift must be paid 15% extra for such shift.
(b) An employee who works on an afternoon or night shift which does not continue:
(i) for at least five successive afternoon or night shifts or six successive afternoon or night shifts in a six day enterprise (where no more than eight ordinary hours are worked on each shift); or
(ii) for at least 38 ordinary hours (where more than eight ordinary hours are worked on each shift and the shift arrangement is in accordance with clauses 23.3 or 23.4);
must be paid for each shift 50% extra for the first three hours and 100% extra for the remaining hours.
(c) An employee who:
(i) during a period of engagement on shift, works night shift only; or
(ii) remains on night shift for a longer period than four consecutive weeks; or
(iii) 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 shift cycle;
must, during such engagement, period or cycle, be paid 30% extra for all time worked during ordinary working hours on such night shift.
24.4 Rate for working on Saturday shifts [2010 Award]
The rate at which a shiftworker must be paid for work performed between midnight on Friday and midnight on Saturday is 150%. The extra rate is in substitution for and not cumulative upon the shift allowances prescribed in clause 24.3.
24.5 Rate for working on Sunday and public holiday shifts [2010 Award]
(a) The rate at which a continuous shiftworker must be paid for work on a rostered shift the major portion of which is performed on a Sunday or public holiday is 200%.
(b) The rate at which a shiftworker, on other than continuous shiftwork, must be paid for all time worked on a Sunday is 200% and on a public holiday is 250%.
(c) Where shifts commence between 11.00 pm and midnight on a Sunday or public holiday, the time so worked before midnight does not entitle the employee to the Sunday or public holiday rate for the shift. However, the time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or public holiday and extending into the Sunday or public holiday must be regarded as time worked on the Sunday or public holiday.
(d) Where shifts fall partly on a public holiday, the shift which has the major portion falling on the public holiday must be regarded as the public holiday shift. By agreement between the employer and the majority of employees concerned, the shift which has the minor portion falling on the public holiday may be regarded as the public holiday shift instead.
(e) The extra rates in clause 24.5 are in substitution for and not cumulative upon the shift allowances prescribed in clause 24.3.
26. Overtime [2010 Award]
26.1 Payment for working overtime [2010 Award]
[Varied by PR998078, PR509221, PR523051, PR536854, PR551777, PR566878, PR579571, PR584152, PR592326]
(a) Except as provided for in clauses 26.1(d), 26.5, 26.6 and 26.10, for all work done outside ordinary hours on any day or shift, as defined in clauses 23.2, 23.3 and 23.4, the overtime rate is 150% for the first three hours and 200% thereafter until the completion of the overtime work. For a continuous shiftworker the rate for working overtime is 200%.
(b) For the purposes of clause 26—Overtime, ordinary hours means the hours worked in an enterprise, fixed in accordance with clause 23—Ordinary hours of work and rostering.
(c) The hourly rate, when computing overtime, is determined by dividing the appropriate weekly rate by 38, even in cases when an employee works more than 38 ordinary hours in a week.
[26.1(d) deleted by PR584152 ppc 22Aug16]
[26.1(e) renumbered as 26.1(d) by PR584152 ppc 22Aug16]
(d) When not less than 7.6 hours’ notice has been given to the employer by a relief shiftworker that the relief shiftworker will be absent from work and the shiftworker whom that person should relieve is not relieved and is required to continue work on their rostered day off, the unrelieved shiftworker must be paid at the rate of 200%.
[26.1(f) renumbered as 26.1(e) by PR584152 ppc 22Aug16]
(e) In computing overtime each day’s work stands alone.
26.2 One in, all in does not apply [2010 Award]
The assignment of overtime by an employer to an employee is to be based on specific work requirements and the practice of one in, all in overtime must not apply.
26.3 Rest period after overtime [2010 Award]
(a) When overtime work is necessary it must, wherever reasonably practicable, be arranged so that an employee has at least 10 consecutive hours off duty between the work of successive working days.
(b) An employee, other than a casual employee, who works so much overtime between the termination of their ordinary hours on one day and the commencement of their ordinary hours on the next day that the employee has not had at least 10 consecutive hours off duty between those times must, subject to the other provisions of clause 26.3, be released after completion of the overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during such absence.
(c) If on the instructions of the employer an employee resumes or continues work without having had the 10 consecutive hours off duty the employee must be paid at the rate of 200% until the employee is released from duty for such period. The employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during the absence.
(d) By agreement between the employer and individual employee, the 10 hour break provided for in clause 26.3 may be reduced to a period of no less than eight hours.
(e) The provisions of clause 26.3 will apply in the case of a shiftworker as if eight hours were substituted for 10 hours when overtime is worked:
(i) for the purpose of changing shift rosters; or
(ii) where a shiftworker does not report for duty and a day worker or a shiftworker is required to replace the shiftworker; or
(iii) where a shift is worked by arrangement between the employees themselves.
26.4 Saturday work [2010 Award]
A day worker required to work overtime on a Saturday must be paid for a minimum of three hours’ work at the rate of 150% for the first three hours and 200% thereafter, except where the overtime is continuous with overtime commenced on the previous day.
26.5 Sunday work [2010 Award]
An employee required to work overtime on a Sunday must be paid for a minimum of three hours’ work at the rate of 200%. The 200% is to be paid until the employee is relieved from duty.
26.6 Public holiday work [2010 Award]
(a) A day worker required to work overtime on a public holiday must be paid for a minimum of three hours’ work at the rate of 250%. The 250% is to be paid until the employee is relieved from duty.
(b) A continuous shiftworker required to work overtime on a public holiday must be paid for a minimum of three hours’ work at the rate of 200%.
(c) A non-continuous shiftworker required to work overtime on a public holiday must be paid for a minimum of three hours’ work at the rate of 250%. The 250% is to be paid until the employee is relieved from duty.
26.7 Rest break [2010 Award]
(a) An employee working overtime must be allowed a rest break of 20 minutes without deduction of pay after each four hours of overtime worked if the employee is to continue work after the rest break.
(b) Where a day worker is required to work overtime on a Saturday, Sunday or public holiday or on a rostered day off, the first rest break must be paid at the employee’s ordinary time rate.
(c) Where overtime is to be worked immediately after the completion of ordinary hours on a day or shift and the period of overtime is to be more than one and a half hours, an employee, before starting the overtime, is entitled to a rest break of 20 minutes to be paid at the employee’s ordinary time rate.
(d) An employer and employee may agree to any variation of clause 26.7 to meet the circumstances of the work in hand provided that the employer is not required to make any payment in excess of or less than what would otherwise be required under clause 26.7.
26.8 Meal allowance [2010 Award]
[26.8(a) varied by PR998078, PR509221, PR523051, PR536854, PR551777, PR566878, PR579571,PR592326 ppc 01Jul17]
(a) An employee must be paid a meal allowance of $14.70 on each occasion the employee is entitled to a rest break in accordance with clause 26.7, except in the following circumstances:
(i) if the employee is a day worker and was notified no later than the previous day that they would be required to work such overtime; or
(ii) if the employee is a shiftworker and was notified no later than the previous day or previous rostered shift that they would be required to work such overtime; or
(iii) if the employee lives in the same locality as the enterprise and could reasonably return home for meals; or
(iv) if the employee is provided with an adequate meal by the employer.
(b) If an employee has provided a meal or meals on the basis that they have been given notice to work overtime and the employee is not required to work overtime or is required to work less than the amount advised, they must be paid the prescribed meal allowance for the meal or meals which they have provided but which are surplus.
26.9 Transport of employees [2010 Award]
When an employee, after having worked overtime or a shift for which they have not been regularly rostered, finishes work at a time when reasonable means of transport are not available, the employer must provide the employee with a conveyance home, or pay the employee at the overtime rate for the time reasonably occupied in reaching home.
26.10 Time off instead of payment for overtime [2010 Award]
[26.10 inserted by PR584152 ppc 22Aug16]
(a) An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.
(b) Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause 26.10.
(c) An agreement must state each of the following:
(i) the number of overtime hours to which it applies and when those hours were worked;
(ii) that the employer and employee agree that the employee may take time off instead of being paid for the overtime;
(iii) that, if the employee requests at any time, the employer must pay the employee, for overtime covered by the agreement but not taken as time off, at the overtime rate applicable to the overtime when worked;
(iv) that any payment mentioned in subparagraph (iii) must be made in the next pay period following the request.
Note: An example of the type of agreement required by this clause is set out at Schedule H. There is no requirement to use the form of agreement set out at Schedule H. An agreement under clause 26.10 can also be made by an exchange of emails between the employee and employer, or by other electronic means.
(d) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.
EXAMPLE: By making an agreement under clause 26.10 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.
(e) Time off must be taken:
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee and employer.
(f) If the employee requests at any time, to be paid for overtime covered by an agreement under clause 26.10 but not taken as time off, the employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable to the overtime when worked.
(g) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (e), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.
(h) The employer must keep a copy of any agreement under clause 26.10 as an employee record.
(i) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.
(j) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 26.10 will apply, including the requirement for separate written agreements under paragraph (b) for overtime that has been worked.
Note: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).
(k) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 26.10 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.
Note: Under section 345(1) of the Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 26.10.
2020 Award
Part 3—Hours of Work
13. Ordinary hours of work and rostering [2020 Award]
[Varied by PR730921]
13.1 Maximum weekly hours and requests for flexible working arrangements are provided for in the NES.
13.2 Ordinary hours of work—day workers [2020 Award]
(a) Subject to clause 13.6, the ordinary hours of work are an average of up to 38 per week but not exceeding 152 hours in 28 days.
(b) The ordinary hours of work for a day worker are worked between 6.00 am and 6.00 pm, Monday to Saturday.
[13.2(c) substituted by PR730921 ppc 01Jul21]
(c) The spread of hours in clause 13.2(b) (6.00 am to 6.00 pm) may be moved up to one hour forward or one hour back by agreement between an employer and:
(i) the majority of employees at the workplace;
(ii) the majority of employees in a discrete section of the workplace;or
(iii) an individual employee.
Different agreements may be reached with the majority of employees in different sections of the workplace or with different individual employees.
(d) The ordinary hours of work are to be worked continuously,except for meal breaks,at the discretion of the employer.
(e) The ordinary hours of work may be worked on any day or all of the days,Monday to Saturday,provided that a day worker must not be required to work more than 5½ days of ordinary hours in a week.
(f) The days on which ordinary hours are worked may include Sunday subject to agreement between the employer and the majority of employees concerned. Agreement in this respect may also be reached between the employer and an individual employee.
(g) Any work performed outside the spread of hours must be paid for at overtime rates in accordance with clause 19—Overtime. However,any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose,for example,of getting the plant in a state of readiness for production work is to be regarded as part of the 38 ordinary hours of work but still paid at overtime rates.
13.3 Ordinary hours of work—continuous shiftworkers [2020 Award]
(a) Continuous shiftwork means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least 6 consecutive days without interruption except for breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer.
(b) Subject to clause 13.5(a), the ordinary hours of work for a continuous shiftworker are, at the discretion of the employer, to average 38 hours per week inclusive of meal breaks and must not exceed 152 hours in 28 consecutive days.
(c) Paid meal break
A continuous shiftworker is entitled to a 20 minute meal break on each shift which must be counted as time worked.
13.4 Ordinary hours of work—non-continuous shiftworkers [2020 Award]
(a) Subject to clause 13.5(a) the ordinary hours of work for a non-continuous shiftworker are an average of 38 per week and must not exceed 152 hours in 28 consecutive days.
(b) The ordinary hours of work must be worked continuously, except for meal breaks, at the discretion of the employer.
13.5 Ordinary hours of work—continuous and non-continuous shiftworkers ––rosters [2020 Award]
(a) By agreement between the employer and the majority of employees concerned, a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days but does not exceed 12 months.
(b) Except at changeover of shifts an employee must not be required to work more than one shift in each 24 hours.
(c) Where an employee works on a shift other than a rostered shift, they are to be paid in accordance with clause 20.8
13.6 Methods of arranging ordinary working hours [2020 Award]
(a) The arrangement of ordinary working hours must be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned. This does not preclude the employer reaching agreement with individual employees about how their working hours are to be arranged.
(b) The matters on which agreement may be reached include:
(i) how the hours are to be averaged within a work cycle established in accordance with clauses 13.2,13.3,13.4 and 13.5;
(ii) the duration of the work cycle for day workers provided that such duration does not exceed 12 months;
(iii) rosters which specify the starting and finishing times of working hours;
(iv) a period of notice of a rostered day off which is less than 4 weeks;
(v) substitution of rostered days off;
(vi) accumulation of rostered days off;
(vii) arrangements which allow for flexibility in relation to the taking of rostered days off;and
(viii) any arrangements of ordinary hours which exceed 8 hours in any day but not exceeding 12 hours in a day or shift.
(c) Nothing in clause 13.6 affects the employer’s right to determine the daily hours of work for day workers from time to time within the spread of hours referred to in clauses 13.2(b),13.2(c) and 13.2(d) and the employer’s right to determine the commencing and finishing time of shifts from time to time.
(d) By agreement between an employer and the majority of employees in the enterprise or part of the enterprise concerned,12 hour days or shifts may be introduced subject to:
(i) proper health monitoring procedures being introduced;
(ii) suitable roster arrangements being made;
(iii) proper supervision being provided;
(iv) adequate breaks being provided;and
(v) a trial or review process being jointly implemented by the employer and
the employees or their representatives.
13.7 Daylight saving [2020 Award]
For work performed which spans the start or finish of a system of daylight saving as prescribed by relevant state or territory legislation,an employee will be paid according to adjusted time (i.e. the time on the clock at the beginning of work and the time on the clock at the end of work).
13.8 Make-up time [2020 Award]
(a) An employee may elect,with the consent of the employer,to work make-up time under which the employee takes time off during ordinary hours,and works those hours at a later time,during the spread of ordinary hours provided in this award.
(b) An employee on shiftwork may elect,with the consent of their employer,to work make-up time under which the employee takes time off during ordinary hours and works those hours at a later time,at the rate which would have been applicable to the hours taken off.
Part 5—Overtime and Penalty Rates [2020 Award]
19. Overtime [2020 Award]
[Varied by PR723966]
19.1 Payment for working overtime [2020 Award]
[19.1(a) substituted by PR723966 ppc 20Nov20]
(a) Full-time and part-time employees
Except as provided for in clauses 19.1(e), 19.5 and 19.6, all time worked outside of ordinary hours on any day or shift, will be paid at the following overtime rates:
(i) 150% of the minimum hourly rate for the first 3 hours; and
(ii) 200% of the minimum hourly rate after 3 hours until the completion of the overtime work; or
(iii) 200% of the minimum hourly rate for a continuous shiftworker.
(b) Casual employees
[New 19.1(b) inserted by PR723966 ppc 20Nov20]
Except as provided for in clauses 19.1(e),19.5 and 19.6,all time worked outside of ordinary hours on any day or shift, will be paid at the following overtime rates:
(i) 150% of the casual hourly rate prescribed by clause 11.1 for the first 3 hours; and
(ii) 200% of the casual hourly rate prescribed by clause 11.1 after 3 hours until the completion of the overtime work; or
(iii) 200% of the casual hourly rate prescribed by clause 11.1 for a continuous shiftworker.
NOTE: The casual hourly rate is the minimum hourly rate prescribed by the award plus the casual loading prescribed by clause 11.1(a)(ii)..
[19.1(b) renumbered as 19.1(c) by PR723966 ppc 20Nov20]
(c) For the purposes of clause 19.1, ordinary hours means the hours worked in an enterprise, fixed in accordance with clause 13—Ordinary hours of work and rostering.
[19.1(c) renumbered as 19.1(d) by PR723966 ppc 20Nov20]
(d) The hourly rate, when calculating overtime, is determined by dividing the appropriate weekly rate by 38, even in cases when an employee works more than 38 ordinary hours in a week.
[19.1(d) renumbered as 19.1(e) and varied by PR723966 ppc 20Nov20]
(e) An unrelieved full-time or part-time shiftworker must be paid at the rate of 200% of the minimum hourly rate and an unrelieved casual shiftworker must be paid at the rate of 200% of the casual hourly rate prescribed by clause 11.1 when:
(i) 7.6 hours or more of notice has been given to the employer by a relief shiftworker that the relief shiftworker will be absent from work;and
(ii) the shiftworker whom that person should relieve is not relieved;and
(iii) the shiftworker is required to continue work on their rostered day off.
[Note inserted by PR723966 ppc 20Nov20]
NOTE: The casual hourly rate is the minimum hourly rate prescribed by the award plus the casual loading prescribed by clause 11.1(a)(ii).
[19.1(e) renumbered as 19.1(f) by PR723966 ppc 20Nov20]
(f) In calculating overtime each day’s work stands alone.
19.2 One in,all in does not apply [2020 Award]
The assignment of overtime by an employer to an employee is to be based on specific work requirements and the practice of one in,all in overtime must not apply.
19.3 Rest period after overtime [2020 Award]
(a) When overtime work is necessary it must,wherever reasonably practicable,be arranged so that an employee has at least 10 consecutive hours off duty between the work of successive working days.
(b) An employee who works so much overtime that the employee has not had at least 10 consecutive hours off duty between the termination of their ordinary hours on one day and the commencement of their ordinary hours the next day must be released after completion of the overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during such absence. Provided that:
(i) clause 19.3(b) is subject to the other provisions of clause 19.3.
(ii) clause 19.3(b) does not apply to casual employees.
(c) If on the instructions of the employer an employee resumes or continues work without having had the 10 consecutive hours off duty the employee is entitled;
(i) to be paid at the rate of 200% of the minimum hourly rate until the employee is released from duty for such period;and
(ii) once released from duty,to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during the absence.
(d) By agreement between the employer and individual employee,the 10 hour break provided for in clause 19.3 may be reduced to a period of no less than 8 hours.
(e) The provisions of clause 19.3 will apply in the case of a shiftworker as if 8 hours were substituted for 10 hours when overtime is worked:
(i) for the purpose of changing shift rosters;or
(ii) where a shiftworker does not report for duty and a day worker or a shiftworker is required to replace the shiftworker;or
(iii) where a shift is worked by arrangement between the employees themselves.
19.4 Saturday work [2020 Award]
[Paragraph renumbered as 19.4(a) and varied by PR723966 ppc 20Nov20]
(a) A full-time or part-time day worker required to work overtime on a Saturday must be paid for a minimum of 3 hours’work at the rate of 150% of the minimum hourly rate for the first 3 hours and 200% of the minimum hourly rate after 3 hours,except where the overtime is continuous with overtime commenced on the previous day.
[19.4(b) inserted by PR723966 ppc 20Nov20]
(b) A casual day worker required to work overtime on a Saturday must be paid for a minimum of 3 hours’work at the rate of 150% of the casual hourly rate prescribed by clause 11.1 for the first 3 hours and 200% of the casual hourly rate prescribed by clause 11.1 after 3 hours,except where the overtime is continuous with overtime commenced on the previous day.
NOTE: The casual hourly rate is the minimum hourly rate prescribed by the award plus the casual loading prescribed by clause 11.1(a)(ii).
19.5 Sunday work [2020 Award]
[Paragraph renumbered as 19.5(a) and varied by PR723966 ppc 20Nov20]
(a) A full-time or part-time employee required to work overtime on a Sunday must be paid for a minimum of 3 hours’work at the rate of 200% of the minimum hourly rate. The 200% is to be paid until the employee is relieved from duty.
[19.5(b) inserted by PR723966 ppc 20Nov20]
(b) A casual employee required to work overtime on a Sunday must be paid for a minimum of 3 hours’work at the rate of 200% of the casual hourly rate prescribed by clause 11.1. The 200% is to be paid until the employee is relieved from duty.
NOTE:The casual hourly rate is the minimum hourly rate prescribed by the award plus the casual loading prescribed by clause 11.1(a)(ii).
19.6 Public holiday work [2020 Award]
[19.6(a) varied by PR723966 ppc 20Nov20]
(a) A full-time or part-time day worker required to work overtime on a public holiday must be paid for a minimum of 3 hours’work at the rate of 250% of the minimum hourly rate. The 250% is to be paid until the employee is relieved from duty.
[New 19.6(b) inserted by PR723966 ppc 20Nov20]
(b) A casual day worker required to work overtime on a public holiday must be paid for a minimum of 3 hours’work at the rate of 250% of the casual hourly rate prescribed by clause 11.1. The 250% is to be paid until the employee is relieved from duty.
NOTE:The casual hourly rate is the minimum hourly rate prescribed by the award plus the casual loading prescribed by clause 11.1(a)(ii).
[19.6(b) renumbered as 19.6(c) and varied by PR723966 ppc 20Nov20]
(c) A full-time or part-time continuous shiftworker required to work overtime on a public holiday must be paid for a minimum of 3 hours’work at the rate of 200% of the minimum hourly rate.
[New 19.6(d) inserted by PR723966 ppc 20Nov20
(d) A casual continuous shiftworker required to work overtime on a public holiday must be paid for a minimum of 3 hours’work at the rate of 200% of the casual hourly rate prescribed by clause 11.1.
NOTE:The casual hourly rate is the minimum hourly rate prescribed by the award plus the casual loading prescribed by clause 11.1(a)(ii).
[19.6(c) renumbered as 19.6(e) by PR723966 ppc 20Nov20]
(e) A non-continuous shiftworker required to work overtime on a public holiday must be paid for a minimum of 3 hours’work at the rate of 250% of the minimum hourly rate. The 250% is to be paid until the employee is relieved from duty.
[19.6(f) inserted by PR723966 ppc 20Nov20]
(f) A casual non-continuous shiftworker required to work overtime on a public holiday must be paid for a minimum of 3 hours’work at the rate of 250% of the casual hourly rate prescribed by clause 11.1. The 250% is to be paid until the employee is relieved from duty.
NOTE:The casual hourly rate is the minimum hourly rate prescribed by the award plus the casual loading prescribed by clause 11.1(a)(ii).
19.7 Paid rest break [2020 Award]
(a) An employee working overtime must be allowed a rest break of 20 minutes without deduction of pay after each 4 hours of overtime worked if the employee is to continue work after the rest break.
(b) Where a day worker is required to work overtime on a Saturday,Sunday or public holiday or on a rostered day off,the first rest break must be paid at the employee’s ordinary time rate.
(c) Where overtime is to be worked immediately after the completion of ordinary hours on a day or shift and the period of overtime is to be more than one and a half hours,an employee,before starting the overtime,is entitled to a rest break of 20 minutes to be paid at the employee’s minimum hourly rate.
(d) An employer and employee may agree to any variation of clause 19.7 to meet the circumstances of the work in hand provided that the employer is not required to make any payment in excess of or less than what would otherwise be required under clause 19.7.
(e) An employee entitled to a paid rest break may be entitled to a meal allowance in accordance with clause 17.3(a).
19.8 Transport of employees [2020 Award]
When an employee,after having worked overtime or a shift for which they have not been regularly rostered,finishes work at a time when reasonable means of transport are not available,the employer must provide the employee with a conveyance home,or pay the employee at the overtime rate for the time reasonably occupied in reaching home.
19.9 Time off instead of payment for overtime
(a) An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.
(b) Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause 19.9.
(c) An agreement must state each of the following:
(i) the number of overtime hours to which it applies and when those hours were worked;
(ii) that the employer and employee agree that the employee may take time off instead of being paid for the overtime;
(iii) that,if the employee requests at any time,the employer must pay the employee,for overtime covered by the agreement but not taken as time off,at the overtime rate applicable to the overtime when worked;
(iv) that any payment mentioned in clause 19.9(c)(iii) must be made in the next pay period following the request.
NOTE: An example of the type of agreement required by clause 19.9 is set out at Schedule D—Agreement for Time Off Instead of Payment for Overtime. There is no requirement to use the form of agreement set out at Schedule D—Agreement for Time Off Instead of Payment for Overtime. An agreement under clause 19.9 can also be made by an exchange of emails between the employee and employer,or by other electronic means.
(d) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.
EXAMPLE: By making an agreement under clause 19.9 an employee who worked 2 overtime hours is entitled to 2 hours’time off.
(e) Time off must be taken:
(i) within the period of 6 months after the overtime is worked;and
(ii) at a time or times within that period of 6 months agreed by the employee and employer.
(f) If the employee requests at any time,to be paid for overtime covered by an agreement under clause 19.9 but not taken as time off,the employer must pay the employee for the overtime,in the next pay period following the request,at the overtime rate applicable to the overtime when worked.
(g) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in clause 19.9(e),the employer must pay the employee for the overtime,in the next pay period following those 6 months,at the overtime rate applicable to the overtime when worked.
(h) The employer must keep a copy of any agreement under clause 19.9 as an employee record.
(i) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make,or not make,an agreement to take time off instead of payment for overtime.
(j) An employee may,under section 65 of the Act,request to take time off,at a time or times specified in the request or to be subsequently agreed by the employer and the employee,instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 19.9 will apply,including the requirement for separate written agreements under clause 19.9(b) for overtime that has been worked.
NOTE: If an employee makes a request under section 65 of the Act for a change in working arrangements,the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).
(k) If,on the termination of the employee’s employment,time off for overtime worked by the employee to which clause 19.9 applies has not been taken,the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.
NOTE: Under section 345(1) of the Act,a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 19.9.
20. Penalty rates and shiftwork [2020 Award]
20.1 Saturday and Sunday work—day worker [2020 Award]
The rate to be paid to a day worker for ordinary time worked:
(a) before noon on a Saturday is 125% of the minimum hourly rate;and
(b) after noon on a Saturday is 150% of the minimum hourly rate.
(c) Where agreement is reached in accordance with clause 13.2(f),the rate to be paid to a day worker for ordinary time worked between midnight on Saturday and midnight on Sunday is 200%.
20.2 Work on a public holiday–day worker [2020 Award]
(a) A day worker required to work on a public holiday must be paid for a minimum of 3 hours’work at the rate of 250% of the minimum hourly rate.
(b) The 250% rate must be paid to the employee until the employee is relieved from duty.
20.3 Definitions of shiftwork [2020 Award]
For the purposes of this award:
(a) rostered shift means any shift of which the employee concerned has had at least 48 hours’notice;
(b) afternoon shift means any shift finishing after 6.00 pm and at or before midnight;and
(c) night shift means any shift finishing after midnight and at or before 8.00 am.
20.4 The spread of hours over which shifts may be worked may be moved up to one hour forward or one hour back by agreement between an employer and:
(a) the majority of employees at the workplace;
(b) the majority of employees in a discrete section of the workplace;or
(c) an individual employee.
Different agreements may be reached with the majority of employees in different sections of the workplace or with different individual employees.
20.5 Afternoon and night shift penalty rates [2020 Award]
(a) An employee who works on afternoon or night shift must be paid 115% of the minimum hourly rate for such shift.
(b) Non-successive shifts
An employee who works on an afternoon or night shift which does not continue:
(i) for at least 5 successive afternoon or night shifts or 6 successive afternoon or night shifts in a 6 day enterprise (where no more than 8 ordinary hours are worked on each shift);or
(ii) for at least 38 ordinary hours (where more than 8 ordinary hours are worked on each shift and the shift arrangement is in accordance with clauses 13.3,13.4 or 13.5);
must be paid for each shift 150% of the minimum hourly rate for the first 3 hours and 200% of the minimum hourly rate for the remaining hours.
(c) Permanent night shift
An employee who:
(i) during a period of engagement on shift, works night shift only; or
(ii) remains on night shift for a longer period than 4 consecutive weeks; or
(iii) 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 shift cycle;
must, during such engagement, period or cycle, be paid 130% of the minimum hourly rate for all time worked during ordinary working hours on such night shift.
20.6 Rate for working on Saturday shifts [2020 Award]
The rate at which a shiftworker must be paid for work performed between midnight on Friday and midnight on Saturday is 150% of the minimum hourly rate. The extra rate is in substitution for and not cumulative upon the shift penalty rates prescribed in clause 20.5.
20.7 Rate for working on Sunday and public holiday shifts [2020 Award]
(a) The rate at which a continuous shiftworker must be paid for work on a rostered shift the major portion of which is performed on a Sunday or public holiday is 200% of the minimum hourly rate.
(b) The rate at which a shiftworker, on other than continuous shiftwork, must be paid for all time worked:
· on a Sunday is 200% of the minimum hourly rate; and
· on a public holiday is 250% of the minimum hourly rate.
(c) Where shifts commence between 11.00 pm and midnight on a Sunday or public holiday, the time so worked before midnight does not entitle the employee to the Sunday or public holiday rate for the shift.
(d) The time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or public holiday and extending into the Sunday or public holiday must be regarded as time worked on the Sunday or public holiday.
(e) Where shifts fall partly on a public holiday, the shift which has the major portion falling on the public holiday must be regarded as the public holiday shift. By agreement between the employer and the majority of employees concerned, the shift which has the minor portion falling on the public holiday may be regarded as the public holiday shift instead.
(f) The extra rates in clause 20.7 are in substitution for and not cumulative upon the shift allowances prescribed in clause 20.4.
20.8 Non-rostered shiftwork [2020 Award]
Where an employee works on a shift other than a rostered shift, the employee must:
(a) if employed on continuous work, be paid at the rate of 200% of the minimum hourly rate; or
(b) if employed on other shiftwork:
(i) be paid at the rate of 150% of the minimum hourly rate for the first 3 hours; and
(ii) 200% of the minimum hourly rate thereafter.
(c) Clause 20.8 does not apply when the time is worked:
(i) by arrangement between the employees themselves;
(ii) for the purposes of effecting the customary rotation of shifts; or
(iii) on a shift to which the employee is transferred on short notice as an alternative to standing the employee off in circumstances which would entitle the employer to deduct payment in accordance with the stand down provisions in Part 3-5 of the Act.
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