The Australian Workers' Union v John Holland Pty Ltd
[2012] FWA 10052
•27 NOVEMBER 2012
[2012] FWA 10052 |
|
RECOMMENDATION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
The Australian Workers' Union
v
John Holland Pty Ltd
(C2012/1344)
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
John Holland Pty Ltd
(C2012/5846)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
John Holland Pty Ltd
(C2012/5856)
Building, metal and civil construction industries | |
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 27 NOVEMBER 2012 |
Alleged dispute regarding hours of work and rosters.
[1] On 1 November 2012 the AWU, the AMWU and the CEPU (“the various unions”) each lodged a dispute application under s.739 of the Fair Work Act 2009 (“the Act”) concerning issues relating to the John Holland LNG Projects Union Greenfield Agreement (“the Agreement”). The employer concerned was John Holland Pty Ltd (“the Employer”), which carries out various construction works at the GLNG site in Gladstone.
[2] The applications were subject to dispute conferences on 6 November 2012 and 16 November 2012. At the final conference conducted on 23 November 2012 the parties jointly sought that I make a recommendation in relation to the remaining matter in dispute. I did so after further providing the parties with an opportunity to make submissions in relation to their respective positions.
The background
[3] The parties initially contested whether the agreement entitled the employer to introduce a non-rotating afternoon shift, but with the passage of time and discussion this issue ceased to be pressed. Instead, the parties became focused upon the appropriate shift allowance to apply to such a non-rotating, permanent afternoon shift.
[4] Clause 8.3 of the agreement is headed “Shiftwork” and provides as follows:
(a) The nominal ordinary hours of shift work (whether continuous or not) will be an average of 36 hours per week from Monday to Sunday inclusive over a work roster cycle.
(b) Shift Penalties - Monday to Friday:
(1) Day shift (not day work) - Base Hourly Rate
(2) Afternoon/night shift - Base Hourly Rate plus a flat shift loading of 15% of the employee's Base Hourly Rate, for all hours that the employee is engaged on an afternoon/nightshift
(c) Shift Penalties- Monday to Friday- Non-Rotating:
(1) Permanent non-rotating shift (night shift) - Base Hourly Rate plus a flat shift loading of 30% of the employee's Base Hourly Rate, for all hours that the employee is engaged on a permanent non-rotating shift (night shift)
(d) Shift Penalties - Weekends:
(1) All ordinary shifts worked by shift workers between midnight Friday and midnight on Saturday shall be paid Base Hourly Rate plus a flat shift loading of 50% of the employee's Base Hourly Rate.
(2) All ordinary shifts worked by shift workers between midnight Saturday and midnight on Sunday shall be paid Base Hourly Rate plus a flat shift loading of 100% of the employee's Base Hourly Rate.
(e) Majority Hours
(1) Where the majority of ordinary hours fall on a particular day determines the shift penalty payment for the ordinary hours of a particular shift. To avoid confusion, a 10 hour nightshift, commencing at 6:00pm on Friday and finishing at 4:00am on Saturday would be deemed to be a "Friday" shift for determining ordinary time shift penalty with the overtime paid in accordance with subclause 11.4 (e).
(f) Afternoon shift means any shift commencing after 2.00pm.
(g) Night shift means any shift commencing at or after 6.00pm.
(h) The arrangements for non rotating night shift work will be:
(1) Shift cycles must run for at least five days duration. Where less than five (5) consecutive shifts are worked then employees shall be paid for each shift, one half time extra for the first two (2) hours and time extra for the remaining hours in addition to the Base Hourly Rate. The consecutive nature of a shift will not be deemed to be broken if work is not carried out on a Saturday, Sunday or RDO or on any public holiday.
(2) Notice of the commencement of shift work must be at least 48 hours, other than in emergencies, or unless otherwise agreed.
[5] The Employer contends that clause 8.3(b)(2) of the Agreement refers to all shifts (rotating and permanent non-rotating) and the respective penalties that are to apply, bar in relation to the type of shift stipulated at clause 8.3(c)(1) of the Agreement, which is a non-rotating, permanent night shift. That is, the clause operates so as to exclude the non-rotating night shift from the general stipulation that all other shifts attract a 15% penalty.
[6] If this construction were to be accepted, the non-rotating, permanent afternoon shift would attract a shift penalty of 15%, along with all other rotating shifts. For example, a rotating night shift would receive the same shift allowance as a non-rotating afternoon shift.
[7] The Employer also contends that clause 8.3 of the Agreement is modelled upon clause 9 of the Building and Construction General On-Site Modern Award (“the Modern Award”). I would agree, other than that the Modern Award has a number of other differences, and I will refer to a few of those below.
[8] The various unions contend that clauses 8.3(b)(2) and 8.3(c)(1) of the Agreement distinguish between rotating afternoon and night shifts and non rotating afternoon and night shifts (with clause 8.3(c)(1) of the Agreement being only an example of a non-rotating shift to which a 30% shift allowance applies):
(b) Shift Penalties - Monday to Friday:
(1) Day shift (not day work) - Base Hourly Rate
(2) Afternoon/night shift - Base Hourly Rate plus a flat shift loading of 15% of the employee's Base Hourly Rate, for all hours that the employee is engaged on an afternoon/nightshift
(c) Shift Penalties- Monday to Friday- Non-Rotating:
(1) Permanent non-rotating shift (night shift) - Base Hourly Rate plus a flat shift loading of 30% of the employee's Base Hourly Rate, for all hours that the employee is engaged on a permanent non-rotating shift (night shift)
Consideration
[9] It seems to me that the Agreement, like the Modern Award, is not constructed on the basis of an “example” being posed by 8.3(c)(1) of the Agreement. The language of the Modern Award and the Agreement does not incorporate phrases or terms such as “includes but not limited to”, or “one example of...” etc. Such phrases would suggest the clause has a wider application than the non-rotating night shift.
[10] The construction of clause 8.3(c)(1) of the Agreement leads me to believe that the clause establishes an exception to the general approach specified in clause 8.3(b)(2) of the Agreement. That is, that a 30% shift allowance must be applied only to a non-rotating night shift. I do not discount the fact that the heading to clause 8.3(c)(1) is “Shift Penalties - Monday to Friday - Non-Rotating”. This might seem to suggest the sub clause concerns itself with a general context. But the words which follow are specific and, as I have discussed earlier, do not suggest any other non-rotating roster might attract the 30% shift allowance.
[11] Consequently, clause 8.3(b)(2) of the Agreement concerns itself with all afternoon and night shifts (of either a rotating or non-rotating kind) other than a permanent, non-rotating night shift (which is the subject of clause 8.3(c)(1) of the Agreement).
[12] Indeed, I think the original argument on the part of the various unions that the Agreement (and by implication therefore the Modern Award) does not permit a non-rotating, permanent afternoon shift follows from the argument that clauses 8.3(b)(2) and clause 8.3(c)(1) of the Agreement are distinguishable because the former concerns rotating shifts and the latter concerns non-rotating shifts. If this construction was accepted, then it would in turn follow that the Agreement and the Modern Award would not have anticipated the carrying out of non-rotating afternoon shifts.
[13] The Agreement and the Modern Award, however, both contemplate such shifts being performed. But they are shifts under both the Modern Award and the Agreement that attract the 15% shift allowance along with all other species of afternoon and night shifts (with the exclusion of the non-rotating night shift).
[14] It would be a most peculiar result if the civil construction hours provisions of the Modern Award (and the Agreement) were to be construed in a way which did not permit the working of a non rotating afternoon shift given the demand for continuous operations in that sector.
[15] I add that the distinction in the Modern Award between the day, afternoon and night shifts in terms of the hours at which they start and finish makes the operation of the respective shifts and the differences between the allowances more appreciable. This distinction, however, is muted by the terms of the Agreement, under which the night shift commences at 1800 hours, (two hours earlier than the Modern Award) and an afternoon shift has commenced at 1710 hours. Employees reasonably perceive little difference in inconvenience between a non-rotating afternoon shift and a non-rotating night shift where the commencement times are only 50 minutes apart.
[16] Understandably, further tension at site level has arisen because of the claim made that the EPC Contractor is applying the 30% shift allowance to its non-rotating afternoon shift. The Employers’ workforce must contend (it appears) with a perceived inequity.
[17] But as a matter of construction of the provisions of the Agreement, my recommendation must be that a permanent, non- rotating afternoon shift attracts a 15% shift loading or allowance, and no warrant arises for an increase in that loading or allowance (at least from the terms of the Agreement).
[18] Of course, the construction I have advanced above of clause 8.3 of the Agreement represents my initial inquiry into the issue only. If any of the parties find the Recommendation to be at odds fundamentally with their construction such that its acceptance is inimical to their interests, they may seek a formal determination of the matter under the dispute resolution procedure (and given the circumstances, by another Member of Fair Work Australia if that is their preference).
SENIOR DEPUTY PRESIDENT
Appearances:
Mr T. Spence, for the AWU
Mr T. McKernan, for the AWU
Ms K. Allen, for the AMWU (also for the CEPU)
Mr T. O’Brien, for the CFMEU
Mr S. Patten, for the Employer
Hearing details:
6, 16 and 23 November.
2012.
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