The Trustee for ePharmacy Unit Trust T/A ePharmacy
[2021] FWC 3447
•7 JULY 2021
| [2021] FWC 3447 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.217—Enterprise agreement
The Trustee for ePharmacy Unit Trust T/A ePharmacy
(AG2021/4820)
Pharmacy operations | |
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 7 JULY 2021 |
Application for variation of the ePharmacy Preston Enterprise Agreement 2019.
[1] The Trustee for ePharmacy Unit Trust (Applicant) has applied under s.217 of the Fair Work Act 2009 (Act) to vary the ePharmacy Preston Enterprise Agreement 2019 1(Agreement) to remove an ambiguity and uncertainty.
[2] The United Workers’ Union (Respondent) is covered by the Agreement and opposes the application.
[3] The Agreement was approved by the Commission on 15 May 2019 and came into operation on 22 May 2019. The Agreement replaced the Preston ePharmacy Enterprise Agreement 2015 (2015 Agreement). 2
[4] The application proposes a variation to clause 4.3 of the Agreement which specifies the spread of hours and penalty rates for an employee’s roster where ordinary hours are worked on a Saturday or a Sunday. Clause 4.3 presently reads as follows:
“What is the Spread of Hours for Saturday and Sunday?
4.3 The spread of hours and penalty rate for ordinary hours worked on a Saturday or Sunday are:
Type | Hours applicable | Penalty rate |
Saturday | means all time between midnight Friday and midnight Saturday | 150% |
Sunday | means all time between midnight Saturday and midnight Sunday | 200% |
[5] Relevantly, clause 4.2 of the Agreement specifies the following spread of hours and shift allowances:
“What is the Spread of Hours for Monday to Friday?
4.2 The spread of hours and shift allowance for ordinary hours worked Monday to Friday are:
Type | Hours applicable | Shift Allowance |
Day Work | 0600 – 1830 | NIL |
Early Morning Shiftmeans a shift | Commencing between 0200 and 0600 | 12.5% |
Afternoon Shift means a shift | finishing after 1830 or at or before 0200 | 15% |
Nigh Shift means a shift | Starting after midnight and finishing at or before 0830 | 30% |
[6] Clause 4.2 deals with the spread of hours and shift allowances for ordinary hours worked Monday to Friday. It relevantly defines an “afternoon shift” as a shift finishing after 6:30pm or at or before 2:00am and provides that an employee working such a shift is entitled to be paid the shift allowance of 15%.
[7] Clause 4.3 deals with the spread of hours and penalty rates for ordinary hours worked on a Saturday or Sunday and defines ordinary hours worked on a “Saturday” as meaning all time between midnight Friday and midnight Saturday. The penalty rate for ordinary hours worked on a Saturday is 150%.
[8] The Applicant’s business operates such that employees work afternoon shifts on Fridays which finish at 2:00am on Saturday. The Applicant has treated the hours between midnight on Friday to 2:00am on Saturday as being governed by clause 4.2 and accordingly, has paid the relevant employees the afternoon shift allowance of 15% for these hours.
[9] The Applicant contends that ambiguity exists in relation to the treatment of ordinary hours worked between midnight on Friday and 2:00am on Saturday. 3 The Applicant submits that while it has applied clause 4.2 to ordinary hours performed between midnight on Friday and 2:00am on Saturday, clause 4.3 arguably (and the Respondent argues) applies to the hours between midnight on Friday and 2.00am on Saturday.4
[10] In order that the ambiguity or uncertainty identified by the Applicant is removed, it proposes that clause 4.3 be varied as follows:
Type | Hours applicable | Penalty rate |
Saturday | means all time between midnight Friday and midnight Saturday (except for an | 150% |
Sunday | means all time between midnight Saturday and midnight Sunday | 200% |
[11] Section 217 of the Act provides:
“Variation of an enterprise agreement to remove an ambiguity or uncertainty
(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”
[12] The Applicant is the employer covered by the Agreement and has standing to make the application.
[13] As seems clear from the text of s.217, the discretion to vary an agreement may only be exercised if first the Commission is satisfied that there is ambiguity or uncertainty in the agreement. The principles that are to be applied in considering an application under s.217 may be shortly stated:
• The Commission should approach an application in two stages. First, as a jurisdictional pre-requisite, it should identify whether there is an uncertainty or ambiguity. Secondly, if an ambiguity or uncertainty is identified, it should consider whether to exercise its discretion to vary the agreement the subject of the application; 5
• The process of identifying ambiguity or uncertainty involves making an objective assessment of the words used in the provisions under examination. The words used are construed having regard to their context; 6
• The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions and an arguable case is made out for more than one contention; 7
• However, the Commission must make a finding that an agreement the subject of an application under s.217 is ambiguous or uncertain. Prima facie satisfaction of ambiguity or uncertainty is not sufficient; 8
• The mere existence of rival contentions as to the proper construction of the terms of an agreement will also be an insufficient basis to conclude the existence of ambiguity or uncertainty. Such contentions may be self-serving. The task is to make an objective judgement as to whether the wording of a provision is susceptible to more than one meaning; 9
• However, the task of the Commission is to determine whether a provision in an agreement is ambiguous or uncertain. That task is distinct from determining the proper construction or true meaning of a provision of an agreement. 10
• A provision in an agreement may be ambiguous even though it is capable of interpretation and it is not necessary for the Commission to interpret a provision of an agreement to reach a conclusion concerning the presence of ambiguity or uncertainty. 11 Consequently there is no need for the Commission to feel constrained in the matters to which it may have regard by the principles developed for the interpretation of enterprise agreements. Moreover, the Commission is obliged, in performing its functions or in exercising its powers in relation to a matter under the Act, to take into account, amongst other things, “equity, good conscience and the merits of the matter” (s 578) and it is not bound by the rules of evidence and procedure in relation to a matter (s 591). These provisions of the Act apply to the discharge by the Commission’s functions under s 217(1),12 including by allowing the Commission to have regard to evidence of the parties’ common intention and to the history of agreement provision as part of the “equity, good conscience and the merits” of the matter.13
• Once an ambiguity or uncertainty has been identified, in exercising the discretion whether to vary the agreement, the Commission may also have regard to the mutual or common intention of the parties at the time the agreement was made. 14
[14] The Applicant contends that ambiguity exists as on a plain reading of clauses 4.2 and 4.3, there is an arguable case for more than one contention with respect to the application of the relevant provisions to the afternoon shift pattern involving an employee working ordinary hours beyond midnight on a Friday. Specifically, the Applicant says that an arguable case exists for both its contention that ordinary hours worked between midnight on Friday and 2:00am on Saturday are governed by clause 4.2 and the Respondent’s contention that those hours are governed by clause 4.3. 15
[15] Alternatively, the Applicant submits that clause 4.2 and 4.3 are uncertain because when those provisions are applied to ordinary hours of work being performed between midnight on Friday and 2.00am on Saturday, uncertainty arises as to which clause applies. 16
[16] The Respondent contends that there is no ambiguity or uncertainty as to which clause (clause 4.2 or 4.3) applies to hours worked between midnight on Friday and 2:00am.
[17] Clause 4.1 of the Agreement states:
“4.1 As a Warehouse Team Member or Team Leader your Ordinary Hours of work:
(a) Will be 76 hours a fortnight or an average of 38 hours per week if you are employed on a full time basis;
(b) Will be rostered so that you have a minimum of at least 2 consecutive days off a week unless there is mutual agreement otherwise;
(c) Must be worked within the following hours (known as the spread of hours); and
(d) The days on which ordinary hours are worked may include Saturday and Sunday.
(i) The option to offer rosters that allow for ordinary hours to be worked on a Saturday and/or Sunday will be our decision and determined by operational needs
(ii) The option to work some of your ordinary hours on a Saturday or Sunday will be your choice.
(iii) The option to work ordinary hours on the weekend will be available to you whether you are employed with us on a full time or part time permanent basis.”
[18] The Respondent submits that clause 4.1 does not define the term “shift” and does not preclude a shift from comprising hours on a weekday and a weekend. 17
[19] The Respondent contends that clause 4.3 is not susceptible to more than one meaning, for the following reasons:
• When read in isolation, the penalty rates of 150% and 200% in clause 4.3 are expressed to apply to ordinary hours worked on a Saturday and Sunday respectively, in a particular spread. Specifically, the penalty rate of 150% is expressed to apply to the ordinary hours worked on all hours between midnight on Friday and midnight on Saturday; 18
• For the purpose of penalties, it is “standard to treat Saturday as meaning midnight to midnight” as this is consistent with the penalty rates clause under the Storage Services & Wholesale Award 2010 (Award), which applied to employees prior to the 2015 Agreement; 19 and
• The spread of hours under clause 4.3 is not defined by reference to a particular shift but only by reference to particular times. Specifically, the Saturday spread is defined as all time between midnight Saturday and midnight Sunday, irrespective of the particular shift on which the hours fall within. As such, the hours worked attract the corresponding penalty by reference to when each of those hours are worked; the penalty does not correspond to any particular shift on which those hours fall. 20
[20] The Respondent also says that clause 4.2, when read on its own and in the context of the Agreement, has only one possible meaning so far as it applies to afternoon shifts, that is, ordinary hours worked on a Monday to Friday that fall on the afternoon shift spread (being any hours on a shift which finishes after 6:30pm or at or before 2:00am) attract a shift allowance of 15%. 21 The Respondent reasons as follows:
• The first sentence of clause 4.2 states, “the spread of hours and shift allowance for ordinary hours worked Monday to Friday are”. The object of this sentence is “ordinary hours worked on Monday to Friday” and Monday to Friday “has a clear meaning” and cannot include the time between midnight on Friday and 2:00am on Saturday;
• The “spread of hours” and “shift allowance” in the first sentence of clause 4.2 refers exclusively to the ordinary hours worked between Monday to Friday (that is, midnight on Sunday to midnight on Friday) and does not refer to ordinary hours worked on Saturday and/or Sunday; 22
• Accordingly, the specific allowances listed in the table under the column titled “Shift Allowance” cannot relate to ordinary hours worked on a Saturday or Sunday as “[t]his would contradict the plain language of the first sentence in clause 4.2”; 23
• The shift allowance of 15% does not apply to ordinary hours falling within an “afternoon shift”; it applies to ordinary hours worked between 6:30pm and 2:00am on a Monday to Friday; and 24
• Even in the case that clause 4.2 is susceptible to more than one meaning when read in isolation, a reading of clause 4.2 which precludes the penalty of 50% applying to hours worked between midnight on Friday and 2:00am on Saturday “directly contradicts the plain language of clause 4.3”. 25
[21] As such, the Respondent contends that clause 4.3 applies to hours worked between midnight on Friday and 2:00am on Saturday as clause 4.2 is expressed to apply to ordinary hours worked Monday to Friday 26 and in the result, there exists no ambiguity or uncertainty. The Respondent further submits that difficulty in deciphering or understanding a clause does not necessarily lead to a conclusion that the clause is ambiguous or uncertain; a clause can be “very clumsy”, but it can still be susceptible to only one meaning.27
[22] The Applicant accepts that clause 4.3, taken in isolation, is not susceptible to more than one meaning. However, the Applicant contends that the assessment of whether ambiguity exists is not limited to the analysis of a single clause and submits that ambiguity can arise “where two clauses provide for different entitlement in respect of the same matter”. 28 The Applicant says that such exists in the present case because:
• clause 4.2, on its plain meaning, provides that an afternoon shift which commences on a Friday and ceases at or before 2.00am on a Saturday meets the definition of an afternoon shift and attracts a 15% shift allowance; and
• clause 4.3, on its plain meaning, provides that the time worked between midnight and 2.00am on a Saturday is Saturday work and attracts a penalty of 50%. 29
[23] The former proposition is challenged by the Respondent. The Respondent submits that two conditions must be satisfied for the 15% shift allowance in clause 4.2 to apply: the hours must be worked on an afternoon shift and the hours must be worked on a Monday to Friday. The Respondent contends that a shift finishing at 2:00am on a Saturday satisfies one of the above two conditions, namely, that the hours worked fall within an afternoon shift. However, it submits that the final two hours of the shift, between midnight on Friday and 2:00am on Saturday, do not satisfy the second condition, that the hours worked are on a Monday to Friday. 30
[24] The Applicant contends that on one view clause 4.2 can be read as applying to ordinary hours worked on Monday to Friday as taken to be a period of 24 hours, and on another view, clause 4.2 can be taken to be read as contemplating a shift, and if a shift commences on a Monday to Friday, albeit concluding on a Saturday, then any hours in excess which fall on a Saturday are taken to be part of the Friday hours. The Respondent challenges this proposition, contending that the spread of hours in clause 4.2 is not expressed to encapsulate ordinary hours worked on a shift commencing on a weekday. 31
[25] I do not consider the Applicant has raised an arguable case that the provisions at issue, as they relate to the ordinary hours worked between midnight on Friday and 2.00am on Saturday, are susceptible to more than one meaning nor do I consider that there is any uncertainty. My reasons follow below.
[26] Clause 4.1 of the Agreement deals with ordinary hours of work and provides that such hours for employees employed on a full time basis will be 76 hours per fortnight or an average of 38 hours per week. Clauses 4.2 and 4.3 deal with “spread of hours”. Under a heading - “What is the Spread of Hours for Monday to Friday?” – clause 4.2 sets out the “spread of hours” and “shift allowance” for ordinary hours “worked” Monday to Friday. “Monday to Friday” has a plain and ordinary meaning, that is, the period beginning immediately after midnight on Sunday inclusive of Tuesday, Wednesday and Thursday and ending at midnight on Friday. The period does not include any hours which form part of a Saturday or a Sunday. The use of the adjective “worked” before “Monday to Friday” indicates that the work performed by employees was performed during hours falling in those days.
[27] The Applicant asks the Commission to draw an inference such that the “spread of hours” referred to in clause 4.2 encapsulates all hours of a shift commencing on a weekday, including a shift which commences on a Friday and concludes on a Saturday. I reject this submission. The language of clause 4.2 does not support such an inference. On a plain reading, clause 4.2 does not refer to any ordinary hours worked on a Saturday or a Sunday. Indeed, as clause 4.3 makes clear, “all” ordinary hours work between, relevantly “midnight Friday and Midnight Saturday” means that those hours, when worked are worked on a “Saturday”. The whole of clause 4.2 is concerned with “ordinary hours worked” during Monday to Friday. Relevantly an afternoon shift is defined not by its commencement time, but rather by its finishing time. In the context of the clause 4 as a whole, afternoon shift means working ordinary hours (as set out in clause 4.1) which finish after 6:30 pm on a Monday through Friday, or which finish at or before 2:00am on a Monday through Friday. An afternoon shift is not defined by reference to start time. An early morning shift is defined by reference to its commencing time, while a night shift is defined by reference to both its start time and its finishing time. The shift allowances listed in clause 4.2 do not apply to ordinary hours worked on a Saturday or a Sunday. The arrangement of ordinary hours in clause 4.2 is confined to hours that are worked during Monday to Friday and the provision does not apply to ordinary hours worked between midnight on Friday and 2:00am on Saturday.
[28] The heading to clause 4.3 reads – “What is the Spread of Hours for Saturday and Sunday?”. Thereafter, the first sentence of clause 4.3 states “[t]he spread of hours and penalty rate for ordinary hours worked on a Saturday or Sunday are”. The words “spread of hours” and “penalty rate” in the first sentence of clause 4.3 refer plainly to the ordinary hours worked on a Saturday or Sunday. Specifically, clause 4.3 specifies that a penalty rate of 50% applies for all ordinary hours worked on Saturday, irrespective of the when the hours were commenced. The term “Saturday” also has a plain meaning: all hours between midnight on Friday to midnight on Saturday. Lest there be doubt, as already noted, clause 4.3 defines a “Saturday” for the purpose of identifying when “ordinary hours” worked attract the identified penalty, as meaning “all time between midnight Friday and midnight Saturday”. A “Sunday”, for the same purpose is defined to mean “all time between midnight Saturday and midnight Sunday”. “All time” means just that – every period of measured time worked as ordinary hours between the periods specified. It does not mean “all time” except a time which is part of a period commencing the day before” or “commencing on a Friday”. When read together clauses clause 4.1, 4.2 and 4.3 create a considerable degree of certainty by clearly delineating ordinary hours worked into different time periods and setting out the consequence for payment for those hours worked in the various periods identified.
[29] The specified allowances listed in the table under the column titled “Shift Allowance” in clause 4.2 do not relate to ordinary hours worked on a Saturday or Sunday because, as the Respondent correctly points out, such a reading would contradict the plain language of the first sentence in clause 4.2. Further, a reading of clause 4.2 which precludes the penalty of 50% applying to hours worked between midnight on Friday and 2:00am on Saturday directly contradicts the plain language of clause 4.3. In my view, it is therefore quite clear that clause 4.3 applies to all ordinary hours worked between midnight on Friday and 2:00am on Saturday including those worked as part of a shift which commenced on the preceding Friday evening. Having regard to the words of the various provisions read in the context of clause 4 and of the Agreement as a whole, there is no arguable case for the alternative construction for which the Applicant contends. Moreover, far from being uncertain, the provisions clearly delineate the working of ordinary hours and the consequence for such work at particular times and on particular days. There is therefore no arguable case for uncertainty on the words of the Agreement
[30] The Applicant also contends that ambiguity or uncertainty may be identified having regard to the industrial context and history of the provisions and contends that the mutual intention of the parties to the Agreement was that work performed between midnight on Friday and 2.00am on Saturday was to be exclusively governed by clause 4.2 of the Agreement. This is because:
• In bargaining for the 2015 Agreement, the Applicant was presented with a request from employees, through their bargaining representative, the National Union of Workers (NUW) (now the United Workers’ Union (UWU)) for the introduction of a Rostered Day Off (RDO); 32
• As an alternative, the Applicant proposed to provide its existing full-time employees with an option whereby they could elect to work their 38 weekly ordinary hours over four working days;
• As the Applicant required work to be performed across two shifts, it proposed to its employees that it work one shift from 6.00am to 4.00pm and a second shift from 4.00pm until 2.00am. These shifts would only be worked Monday to Friday as weekend work was not an ongoing feature of the Applicant’s business operation at the time; 33
• The Award provided that an afternoon shift was a shift that ended at or before midnight; a shift finishing between midnight and 2:00am was classed as night shift and attracted a loading of 30%. The Applicant communicated the above-mentioned proposal to its relevant employees, specifically, that the shift structure offered was conditional upon employees agreeing to extend the end time of the afternoon shift to 2.00am; 34
• In its Form F17 filed with the Commission in relation to the 2015 Agreement, the Applicant identified that the afternoon shift end time amounted to a less beneficial arrangement than the Award and made clear that work performed between midnight and 2.00am would be treated as an afternoon shift; 35
• In its Form F18 filed with the Commission, the NUW noted its agreement with the information provided by the Applicant, including with respect to the treatment of afternoon shifts; 36
• There was nothing in the conduct of the parties in bargaining for the Agreement which could be held to have altered the mutual intent formed in effecting the 2015 Agreement; 37
• In its Form F17 filed with the Commission in relation to the Agreement, the Applicant identified that the afternoon shift penalty of 15% included a finishing time of 2:00am and this amounted to a less beneficial arrangement than the Award; 38 and
• On 2 May 2019, Deputy President Masson’s Chambers sent Ms Barbara Lewis, Group Manager of Organisational Development and IR/Safety Advisory for CW Retail Services, an email raising a number of concerns with the Agreement, including a concern about the extension of the span of hours of the afternoon shift and that when compared to the Award, employees under the Agreement would not receive two hours of overtime for work performed between midnight and 2:00am. 39 On 10 May 2019, Ms Lewis sent an email to Deputy President Masson’s Chambers explaining that the afternoon shift loading of 15% would apply to work performed between midnight and 2:00am. The Applicant notes that the Commission did not raise any further concerns in relation to the treatment of work performed between midnight and 2.00am, including between midnight Friday and 2.00am on Saturday and did not require the Applicant to provide any undertakings in relation to the afternoon shift.40”
[31] Further, the Applicant says that while the Agreement amended the 2015 Agreement to allow employees to work some of their ordinary hours on a Saturday or a Sunday through a roster, this change “was clearly intended to apply only to changes implemented where an employee commenced working a shift on a weekend” (emphasis added) and “was not intended to apply to circumstances that existed in the 2015 Agreement, including where employees worked between midnight Friday and 2.00am Saturday”. 41
[32] Ms Lewis gave the following evidence in relation to weekend work in the 2015 Agreement as recorded in transcript:
PN75
MR TINDLEY: What are you talking about when you talk about hours worked on a weekend?---I am talking - on weekends?
PN76
Yes?---On weekends. Weekends under the 2015 agreement are overtime hours that are worked outside of any shift that would be worked as ordinary hours, so for example there may be a situation where a campaign was being run and there might be a required for people to come in for overtime on the Sunday, to prepare for the Monday (indistinct). Those would not be shifts in the sense of the Monday to Friday shifts. They would have been overtime options.
PN77
What about a Friday afternoon shift?---A Friday afternoon shift would be part of the Monday to Friday operations of ordinary hours and it was made clear that the trade offer that we were seeking during the 2015 agreement was that afternoon shifts that would be worked at the site in that Monday to Friday operational aspect would be able to extend two hours into the next day, and that the - and attract the afternoon shift penalty and not any nightshift penalty or other. But each shift actually extended by two hours.
[33] In cross-examination, Ms Lewis was asked whether she informed the relevant employees to the 2015 Agreement that no Saturday penalty rate would apply to the hours between midnight on Friday and 2:00am on Saturday when working the afternoon shift. Ms Lewis made the following comments in the following exchange recorded in transcript:
PN98
All right. When employees are under the award and if they were rostered to work hours on a Saturday, they would expect to get 150 per cent, do you agree with that?---If they were working under the award they would have received whatever entitlement they were entitled to. And yes, we had not had the extension of the Friday afternoon - or the afternoon shift extension so whatever the award said would have applied.
PN99
And with the Friday afternoon extension with that shift applying on Saturday between 12 am and 2 am, you never told employees that that would mean there would be no Saturday penalty applying for those two hours, did you?---I did make it very clear in my briefings of the employees, which I did face to face, and this was a key critical change for them that it was important they would know, I went through the different examples and what their expectations would be in regards to what penalty payments they would be given, and that included the afternoon shift and the rotations through the roster, including the Friday afternoon shift if they were rostered that way.
PN100
But did you ever tell them that they would lose their Saturday penalty rates under the award for the first two hours of the Saturday?---But they're - I'm sorry, I'm confused by your question because if they were to work into Saturday under that previously then the Saturday would have been overtime and could not be counted as part of their ordinary hours. So what I explained to them very clearly was that with the change of the extension of the two hours for afternoon shift on the Monday to Friday roster, that were they were to work on a Friday, for the whole of the Friday afternoon shift to 2 am the next morning, which would obviously be the Saturday, receive the 115 per cent instead of the 130 per cent or a penalty, so yes, I made that clear.
[34] Ms Lewis conceded that there were no discussions about trading off Saturday penalty rates with respect to the Agreement:
PN105
Okay. In the 2019 negotiations the company sought to allow for ordinary hours to be worked on a Saturday, is that correct?---The company sought to be allowed to provide a roster that provided the option for shifts of ordinary hours to be worked on weekends, and that was what the company sought.
PN106
And a shift commencing on 6 am on Friday and ending 2 am on Saturday is a shift that includes ordinary hours worked on Saturday, is that right?---The Friday afternoon shift includes two hours ordinary hours worked on the Saturday, yes.
PN107
And you are aware that under the Award ordinary hours worked on a Saturday attract a 50 per cent penalty, is that correct? Are you aware?---I'm aware of that, and that's why in 2015 why we needed to negotiate the option to have that changed.
PN108
And you never told employees that they'd be trading off their Saturday penalty rates, the hours between 12.00 to 2 am, did you?---Are you talking the 2019 negotiations?
PN109
The 2019 negotiations?---In the 2019 negotiations when changing our option to be able to offer a roster that allowed for a shift of ordinary hours on the weekend, I did make it clear how the spread of hours would work and how their penalties would work were they to take up that rostering option, and that that parred it off, whether it was on afternoon shift, day shift, or alternate days that they could work. And that the option to offer that roster would be up to us, that was a key part, and the option of taking it up would be up to the employees. So I spent some time explaining how that alternate roster, if offered, would work.
PN110
And no discussion about trading off Saturday penalty rates?---No. No because in our view we were not trading off, that we were - for the shift worked on a Saturday or Sunday, we were not trading anything other than what's in the Award.
[35] The Applicant’s evidence, particularly that given by Ms Lewis, goes no further than establishing the Applicant’s subjective intention rather than objectively establishing the mutual intention of the parties either as to the terms of the 2015 Agreement or the Agreement.
[36] In the Form F17 filed with the Commission with respect to both the Agreement and the 2015 Agreement, Ms Lewis identifies only one less beneficial arrangement compared to the Award - that the afternoon shift is extended by two hours and is defined as a shift finishing at or before 2:00am. Ms Lewis does not identify that under the Award, any work on a Saturday and part of shift work would be paid at 150% 42 or if not as part of shift work then as overtime. Moreover, the Form F17 declaration filed in support of the approval of the 2015 Agreement provides that the afternoon “shift penalty [15%] for the 4 day working week roster has been extended to include a finishing time of 2am” [underlining added]. Under a heading “How does a 4 day week work” clause 4.7 of the 2015 Agreement provided that “[A]s a full time employee you will be rostered on a 4 x 10 hour roster over a 10 day work cycle (excluding weekends) . . .” [underlining added]. None of this says anything about payment for ordinary hours of work that begins on a Friday and ends on a Saturday. Ms Lewis’ explanation that she did not refer to Saturday penalty rates in the Form F17 with respect to the 2015 Agreement because the 2015 Agreement did not provide for ordinary hours to be worked on weekends,43 is lacking in credit given the Respondent maintains that the 2015 Agreement allowed for a Friday afternoon shift of ordinary hours to be finished on a Saturday.
[37] The Applicant also relies on a document tabled at the bargaining meeting on 5 November 2015 outlining the Applicant’s proposal to employees, specifically item 5 on page 3 which states:
“5. What is the business asking for in return?
The only way we can fit in a second 10 hour shift [an afternoon shift] is for that second shift finish at 2am in the morning.
What we have asked for in return for our offer, is that the 15% afternoon shift penalty that already applies for work done up to midnight now, also applies to the hours from midnight to 2am. This change would apply only to the 4 day week x 10 hour afternoon shift roster.
So that’s 2 hours extra that we’ve asked for at the 15% penalty rate.
We haven’t asked for any other trade offs or concessions as part of this offer.” 44
[38] The Applicant submits that “it could not have been any more clear” that its intention was that an afternoon shift was to include hours worked after midnight and before 2.00am, including time worked after midnight and before 2.00am on a Saturday and that the document explained “in clear, unambiguous terms” that these hours would attract a 15% afternoon shift penalty, and not any other penalty. 45 This proposition is far from clear. The proposal as indicated applies “only to the 4 day week x 10 hour afternoon shift roster”. Such a roster could be worked on afternoon shifts each beginning on Monday through Thursday and ending at 2:00am the following day, none of which would be a Saturday.
[39] The Applicant did not propose any amendment to the overtime provisions. The Applicant accepts that its offer to employees concerning the 2015 Agreement did not expressly state that an employee would not get paid overtime for hours worked on an afternoon shift commencing on a Friday and finishing between midnight on Friday and 2:00am Saturday. 46 The Applicant also concedes that it did not expressly state that there was a variation to the overtime provisions but submits that such an intention can be inferred from the way the roster structure was communicated to employees.47 This contention is rejected.
[40] Properly construed ordinary hours of work under the 2015 Agreement were those worked on Monday through Friday. 48 The 2015 Agreement made no provision for ordinary hours of work on a Saturday or Sunday. Work on a Saturday when greater than 76 hours in a fortnight or an average of 38 hours per week, would be overtime “in excess of” ordinary hours. If not in excess, then the hours worked on a Saturday would be outside the spread of ordinary hours.49 There is nothing on the face of the 2015 Agreement or in the materials filed in the Commission in support of its approval which would yield a different result.
[41] As to the materials filed in the Commission in support of the approval of the Agreement the correspondence between the Applicant and Deputy President Masson’s Chambers is silent on whether Saturday ordinary time penalty rates are payable for work on a Saturday that began on a Friday. 50
[42] As to the bargaining for the Agreement, the Applicant’s document provided said to have been tabled at a “EA meeting” on 29 January 2019 outlining its proposal to introduce an option for employees to work ordinary hours on weekends, states that employees will be paid 150% of “your base rate for all ordinary hours worked” on Saturday. There is no mention that this would exclude time worked between midnight on Friday and 2:00am on Saturday. 51
[43] The Form F17 filed by the Applicant in support of the approval of the Agreement as noted earlier also did not identify as a less beneficial entitlement that under the Agreement employees working a Friday afternoon shift which finished on a Saturday would be deprived of the penalty rate or overtime rate under the Award. 52
[44] In my view, the documents on which the Applicant relies do no more than make clear that the afternoon shift is extended by two hours, from midnight to 2:00am. The documents do not go so far as to disclose a mutual intention that the consequences of this extension in the spread of hours of the afternoon shift into Saturday would result in no payment as overtime for that work under the 2015 Agreement, or payment of the rates applicable for “all hours” worked as ordinary time on a Saturday under the Agreement. I am therefore not persuaded that there is anything in the contextual material on which the Applicant relies which would suggest that the provisions at issue in the Agreement are arguably ambiguous or uncertain. This is a case where the words of the Agreement clearly say one thing, but the Applicant would like them to say another. There is no case made out on an arguable basis that the provisions are ambiguous or uncertain.
Conclusion
[45] For the reasons given, I am not satisfied that an ambiguity or uncertainty exists. Consequently, the Commission’s power under s.217 cannot be exercised. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
A Aghazarian of the United Workers’ Union for the Applicant
N Tindley solicitor for the Respondent
Hearing details:
2021
Melbourne (via video link)
15 June
Written submissions:
Applicant, 19 May 2021 and 9 June 2021
Respondent, 3 June 2021
1 AE503465
2 AE417293
3 Applicant’s Outline of Submissions dated 19 May 2021 at [8]
4 Ibid at [9]-[10]
5 See Re Tenix Defence Systems Pty Limited Certified Agreement 2001 - 2004 (PR917548) at [28], [32] and [35]
6 Ibid at [29]
7 Ibid at [31]
8 See Colnvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57]
9 See Re Civil Construction Corporation Enterprise Agreement (PR939346); SJ Higgins Pty Ltd and Others v CFMEU (PR903843); Re CFMEU Appeal (Print R2431)
10 Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 at [67]
11 Ibid
12 Ibid at [68]
13 Ibid
14 See Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (PR917548) at [32]
15 Applicant’s Outline of Submissions at [12]
16 Ibid at [13]
17 Respondent’s Outline of Submissions at [24]
18 Respondent’s Outline of Submissions at [19]
19 Respondent’s Outline of Submissions at [19]-[20]
20 Respondent’s Outline of Submissions at [29]
21 Respondent’s Outline of Submissions at [28]
22 Respondent’s Outline of Submissions at [25]
23 Respondent’s Outline of Submissions at [27]
24 Ibid
25 Respondent’s Outline of Submissions at [30]
26 Respondent’s Outline of Submissions at [33]
27 Transcript PN123
28 Applicant’s Reply Submissions at [2]
29 Applicant’s Reply Submissions at [5]
30 Transcript PN128
31 Transcript PN320-PN324
32 Ibid at [20]; Exhibit 1 at [5]
33 Exhibit 1 at [6]
34 Applicant’s Outline of Submissions at [21]; Exhibit 1 at [6]-[8] and Attachments BL-1 and BL-3
35 Applicant’s Outline of Submissions at [22]; Exhibit 1 at [16] and Attachments BL-4
36 Applicant’s Outline of Submissions at [22]; Exhibit 1 at [17] and Attachments BL-5
37 Applicant’s Outline of Submissions at [24]
38 Exhibit 1 at [28] and Attachments BL-8
39 Exhibit 1 at [29] and Attachments BL-9
40 Exhibit 1 at [30] and Attachment BL-10
41 Applicant’s Outline of Submissions at [27]
42 Storage Services and Wholesale Award 2010, clauses 25.1(d) and 25.3(d); clause 24.1
43 Transcript PN104
44 Exhibit 1 and Attachment BL-3
45 Applicant’s Reply Submissions at [10]
46 Transcript PN290-PN297
47 Transcript PN297
48 Preston ePharmacy Enterprise Agreement 2015, clauses 4.1, 4.7
49 Ibid at clause 4.24
50 Exhibit 4 at Attachment BL-9
51 Ibid at Attachment BL-7
52 Storage Services and Wholesale Award 2010, clauses 25.1(d) and 25.3(d); clause 24.1
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