Transport Workers' Union of Australia v Amezdroz and Son Pty Ltd trading as Wettenhalls Group

[2012] FWA 6571

Note: An appeal pursuant to s.604 (C2012/5042) was lodged against this decision - refer to Full Bench decision dated 22 October 2012 [[2012] FWAFB 8951] for result of appeal.

[2012] FWA 6571

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application for Fair Work Australia to deal with a dispute in accordance with a Dispute Settlement Procedure

Transport Workers' Union of Australia
v
Amezdroz & Son Pty Ltd trading as Wettenhalls Group
(C2012/2397)

COMMISSIONER CAMBRIDGE SYDNEY, 3 AUGUST 2012

Dispute settlement procedure - interpretation of provisions of enterprise agreement - dispute as to payment entitlements arising in respect to weekend work - claim for payment of casual rates and shift allowances - evidence supports finding that intention of the parties not properly reflected in provisions of agreement document - interpretation made so as to accord with better off overall test.

[1] This Decision is made in respect of an application made pursuant to section 739 of the Fair Work Act 2009, (the Act), for Fair Work Australia (FWA) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 30 January 2012. The application was made by the Transport Workers’ Union of Australia (the TWU) and it has been taken against Amezdroz & Son Pty Ltd trading as Wettenhalls Group, ACN 63 006 279 152 (Wettenhalls).

[2] The matter is referable to a DSP found at Clause 29 of the Wettenhalls Group Goodman Fielder (NSW) Enterprise Agreement 2011 (the Agreement). There were two questions in dispute which involved the interpretation and application of separate provisions of the Agreement. Specifically, the parties contested the proper interpretation to be applied to: (a) the terms of sub-clause 7.5.3 regarding whether casual employees were entitled to receive a 25% loading on rates of pay prescribed for weekend work; and (b) whether the terms of sub-clause 11.2 required payment of shift penalties for shift work performed on a weekend.

[3] The matter was the subject of unsuccessful conciliation and proceeded to arbitration which involved a Hearing conducted on 27 and 28 June 2012. Mr T Warnes together with Ms J Cindric appeared for the TWU at the Hearing. The TWU adduced evidence from a total of 6 witnesses, one of whom gave evidence via video link from Coffs Harbour. Wettenhalls was represented by Mr D Houlihan from First IR Consultancy Pty Ltd (First IR). Mr Houlihan called two witnesses who provided evidence on behalf of Wettenhalls.

Background

[4] On 8 September 2011, management representatives of Wettenhalls met with TWU officials and Wettenhalls employees engaged as Truck Drivers who worked in connection with the Goodman Fielder company. This was the first meeting of an EBA negotiating committee formed to negotiate an enterprise agreement to cover work performed by Wettenhalls employees on behalf of Goodman Fielder.

[5] The EBA negotiating committee was chaired by Wettenhalls Group HR Manager, Ms Kris Waite and comprised 3 TWU Officials, 4 Drivers and one other management representative, Mr Lajos (Louie) Olah. The committee met on 3 further occasions, 22, 29 September and 6 October 2011. Ms Waite produced a draft agreement document that was periodically amended to reflect particular terms which were the subject of the negotiations.

[6] On 4 October 2011, Ms Waite sent an e-mail to Mr Nightingale who was leading the enterprise agreement negotiations for the TWU. This e-mail 1 summarised the enterprise agreement matters that were outstanding and included an updated draft agreement document. This draft agreement document represented the material upon which the negotiations proceeded at the next and final meeting of the EBA negotiating committee held on 6 October 2011.

[7] At the EBA negotiating committee meeting held on 6 October discussion focussed upon the annual percentage wage increases that would apply during the life of the agreement. The TWU representatives managed to persuade Wettenhalls to increase the annual percentage wage increases for the second and third years of operation of the agreement. In addition, agreement was reached to increase the weekend rate paid to Drivers to $36 per hour. Agreement for these increases were secured via a process which involved Ms Waite leaving the meeting to telephone Wettenhalls’ General Manager (Dedicated Logistics), Mr Mann, in order to obtain the necessary authority to provide agreement on behalf of Wettenhalls. Ms Waite left the meeting to make such phone calls to Mr Mann on at least two occasions.

[8] There was some discussion during the meeting aimed at clarifying that the weekend rate of $36 would increase to $45 for casual Drivers with the addition of 25% casual loading. The evidence about this particular aspect of the agreement negotiations was not complete. The various TWU representatives who were present at the meeting were adamant that Ms Waite confirmed that the 25% casual loading would be paid on the $36 per hour weekend rate. Mr Mann gave evidence that in his telephone discussions with Ms Waite he had clarified that there was no casual loading on top of the weekend rate of $36. Mr Olah, the only witness for Wettenhalls who was present at the meeting on 6 October, said that Ms Waite had described the $36 per hour weekend rate as “all inclusive”. Mr Olah could not recall anyone raising the issue of casual loading and he had no recollection of the shift penalty issue being raised.

[9] Following the meeting of 6 October Ms Waite provided Mr Nightingale with a final version of the enterprise agreement document which included alterations made as a consequence of the agreement reached at the EBA negotiating committee. In due course a majority of the relevant employees of Wettenhalls voted in favour of approval of the document and on 10 November 2011, FWA approved the Agreement [PR516543].

[10] The Agreement commenced operation from 17 November 2011, and at around this time various communications occurred between both Wettenhalls and Drivers, and also between Drivers themselves, which mentioned that the rate under the Agreement for casual Drivers working on weekends would be $45 per hour plus a shift penalty if applicable. These communications were consistent with the understandings of the TWU representatives who claimed that they had sought and obtained clarifications from Ms Waite at the meeting held on 6 October.

[11] However Wettenhalls management did not have the same view about the operation of the Agreement as it would apply to the wage rates applicable to weekend work. Wettenhalls has not paid $45 per hour to casual Drivers working on a weekend and it has not, since the commencement of the Agreement, paid any shift penalties to any employee, casual or “permanent” working on a weekend. Wettenhalls has interpreted the weekend rates specified in the Agreement to be inclusive of casual loading and any otherwise applicable shift penalty. The TWU has contested this interpretation of the Agreement.

[12] Consequently this dispute involves the interpretation and application of sub-clauses 7.5.3 and 11.2 of the Agreement. Firstly, it is relevant to set out the text of clause 7.5 of the Agreement which is in the following terms:

“7.5 Casual employees

7.5.1 A Casual employee is an employee engaged as such.

7.5.2 A Casual employee is not entitled to receive any other benefits defined for other employees within this agreement including but not limited to annual leave, public holidays, paid person/carers leave, regular rostering, the expectation of ongoing employment and long service leave entitlements.

7.5.3 Casual employees receive a 25% loading on top of the relevant Minimum Hourly Rate contained in clause 12.1 for their classification.

7.5.4 Where a casual employee works a shift in accordance with clause 11.1, they shall receive the relevant Minimum Hourly Rate, plus 25%, plus the relevant shift loading.

7.5.5 A casual employee will be engaged for a minimum four (4) hours per occasion.”

[13] As sub-clause 7.5.3 refers to clause 12.1 it is also necessary to set out clause 12 which is in the following terms:

“12. Rates ofPay

12.1 Monday to Friday Rates of Pay

Classification	1 November 2011	1 November 2012	1 November 2013
Grade 1	$22.52	$23.36	$24.24
Grade 2	$23.09	$23.96	$24.85
Grade 3	$23.39	$24.27	$25.18
Grade 4	$23.81	$24.70	$25.63
Grade 5	$24.10	$25.00	$25.94
Grade 6	$24.40	$25.32	$26.26
Grade 7	$24.75	$25:68	$26.64
Grade 8	$25.46	$26.41	$27.41
Grade 9	$25.88	$26.85	$27.86

12.2 Weekend Rates of Pay

Classification	1 November 2011	1 November 2012	1 November 1013
Grade 1	$33.17	$34.41	$35.70
Grade 2	$34.00	$35.28	$36.60
Grade 3	$34.44	$35.73	$37.07
Grade 4	$35.06	$36.37	$37.74
Grade 5	$35.49	$36.82	$38.20
Grade 6	$36.00	$37.35	$38.75
Grade 7	$36.44	$37.81	$39.22
Grade 8	$37.49	$38.90	$40.35
Grade 9	$38.12	$39.55	$41.03

12.3 The Weekend Rate is applicable for all shifts that commence 0001 Saturday to 0000 Sunday. To be clear, a shift that commences on Friday night prior to midnight will receive the Monday to Friday rate for the entire shift. A shift that commences at or after 0001 Saturday will receive the Weekend Rate for the entire shift.

12.4 Increases will take effect from the first full pay period commencing after each anniversary date.

12.5 Minimum weekly pay for a full time employee is 38 x the relevant hourly payment for that classification.”

[14] Secondly, it is also necessary to set out the text of clause 11 of the Agreement which is in the following terms:

“11. Penalty Rates

11.1 Shift Work

11.1.1 Shift Definitions

Early morning shift:	means a shift that starts after 0000 and before 0529
Afternoon Shift:	means a shift that starts after 1015 and finishes before 2359
Night Shift:	means a shift that starts after 1615 and before 0000

11.1.2. Shift Penalties

Permanent and casual employees who work a shift described above will be entitled to the following shift allowances in addition to the relevant hourly rate of pay for the classification and day on which the work is performed.

Early morning shift:	$42.27 per shift
Afternoon shift:	$42.27 per shift
Night shift:	$63.62 per shift

11.2 Weekend Work

Where an employee is required to work ordinary hours on a weekend, they shall be paid at the relevant rate of pay for all ordinary hours worked on that day as stated in Clause 12 Rates of Pay.

11.3 Work on Public Holidays

11.3.1 Where an employee is rostered to work on a public holiday, and does work, then they shall be paid ordinary hours for the public holiday plus be paid double the relevant Monday - Friday rate. Calculation for the time spent working shall be in accordance with the provisions of clause 9.4.

11.3.2 The double time penalty is in lieu of any other penalty that may otherwise be payable.

11.3.3 Casual employees shall be paid double the relevant Monday - Friday rate of pay for work on a public holiday.”

The Applicant’s Case

[15] Mr Warnes, who appeared for the TWU, commenced his submissions by referring to the first issue in contest relating to the interpretation of sub-clause 7.5.3 of the Agreement. Mr Warnes submitted that the words contained in sub-clause 7.5.3 of the Agreement were ambiguous and therefore FWA should have regard to extrinsic evidence so as to properly interpret the true meaning of the sub-clause.

[16] Mr Warnes submitted that there was an error in the drafting of the provisions of sub-clause 7.5.3 whereby it referred to clause 12.1 when it should have correctly referred to clause 12 thereby encompassing the two tables that are set out in sub-clauses 12.1 and 12.2. According to the submissions made by Mr Warnes this interpretation is supported by the terms of the draft agreement document 2 in which sub-clause 7.3.5 referred to clause 12.1 and in that document there was no sub-clause 12.2. In the draft document sub-clause 12.1 included a single table which included both Monday to Friday and weekend rates. The second table which separated out weekend rates in sub-clause 12.2 was only included in the final version of the document.

[17] Mr Warnes submitted that the evidence relating to sub-clause 7.3.5 initially referring to a single table of rates including weekend rates followed by the subsequent inclusion of a second table of weekend rates at sub-clause 12.2 of the final document, demonstrated that there was a mutual intention on behalf of the parties that casual employees who work on weekends were to receive the casual loading in addition to the weekend rate amounting to a payment of $45 per hour.

[18] Further, Mr Warnes said that there was strong evidence provided by Mr Nightingale that the clarification that he received from Ms Waite during the final EBA meeting on 6 October, was that the weekend rates attracted the 25% casual loading. Mr Warnes said that this clarification was supported by evidence from the other members of the bargaining committee who were present at the time and by evidence in the form of text messages that were sent by company supervisors to casual drivers at around the time that the Agreement commenced operation.

[19] Mr Warnes further submitted that there was evidence provided by Mr Nightingale that established that as a general practice the TWU would not negotiate a position which involved the removal of entitlements such as the penalty loading for casual employees. In addition Mr Warnes said that the evidence that Wettenhalls was having trouble covering the weekend shifts further supported the proposition that there was agreement reached to increase the pay of casuals doing weekend work to a minimum of $45 per hour.

[20] Mr Warnes also submitted that the reference to an “all up rate” is one that incorporates overtime payments working Monday to Friday and it does not include either shift penalties or casual loading.

[21] Mr Warnes also made submissions regarding the correct interpretation that should apply to clause 11.1.2. Mr Warnes said that the inclusion of the words “and day” within clause 11.1.2 made it abundantly clear that shift penalties were applicable and were to be paid in respect of all seven days of the week. Further Mr Warnes submitted that there was no evidence that either party had discussed any arrangement that would alter the operation of shift penalties in respect of their application to work on weekends.

[22] In summary, according to Mr Warnes Wettenhalls was obliged to include casual loading and any applicable shift penalty in addition to the weekend rates that were prescribed in the Agreement.

The Case for Wettenhalls

[23] Mr D Houlihan from First IR appeared for Wettenhalls and commenced his submissions by acknowledging that there was little disagreement between the parties in relation to the principles that should apply to the interpretation of an enterprise agreement. In this regard Mr Houlihan referred to various authorities including, in particular, the Decision in AMWU v Silcar Pty Ltd (Silcar) 3.

[24] Mr Houlihan submitted that the interpretation of the two contested clauses in the Agreement as urged by the TWU should be rejected. Mr Houlihan submitted that sub-clause 7.5.3 pointed exactly to one provision and therefore it provided for payment of the 25% casual loading on Monday to Friday rates only. Mr Houlihan submitted that any other interpretation would be potentially in conflict with the explicit terms of the Agreement.

[25] Mr Houlihan submitted that the terms of sub-clause 7.5.3 were deliberate and supported by any contextual contemplation. Mr Houlihan said that to provide for the interpretation suggested by the TWU the words in sub-clause 7.5.3 would have to be interpreted to delete any mention of clause 12.1 and substitute some different wording.

[26] Mr Houlihan made further submissions which rejected the TWU's assertion regarding evidence said to establish that there was a mutual intention for casual employees to receive at least $45 per hour when working on weekends. Mr Houlihan mentioned that during the course of negotiations the weekend rate had increased to $36 which was significantly more than the increase that had been achieved for the Monday to Friday rate. Mr Houlihan said that the level of the increase that was provided for weekend rates when compared to that for Monday to Friday rates, included recognition for the casual loading and any applicable shift penalty.

[27] Mr Houlihan made further submissions which rejected the suggestion that there had been a mistake in the drafting of the final agreement document. Mr Houlihan said that the e-mail provided to Mr Nightingale from Ms Waite which had the draft agreement document attached contained two separate wage rate tables. One table which referred to Monday to Friday work and the other in relation to weekend work. Mr Houlihan said that the covering e-mail and the draft agreement document needed to be read together and as the e-mail contained actual figures and the draft agreement document did not the subsequent reference in sub-clause 7.5.3 to clause 12.1 without mention of 12.2 did not represent a mistake.

[28] Mr Houlihan acknowledged that there were various numbering inconsistencies throughout the Agreement. However he said that sub-clause 7.5.3 was specific in the use of reference to clause 12.1 rather than the more general terminology of a reference to clause 12. Further, Mr Houlihan submitted that it was relevant to consider the historical arrangements that had applied at Wettenhalls whereby employees who were casual were paid the same rate for weekend work as was paid to permanent employees.

[29] In respect to the second aspect of interpretation of the Agreement Mr Houlihan submitted that the substantial increase that was provided for weekend work also comprehended any payment of shift penalty that may be applicable. In this regard, Mr Houlihan said that the provisions of sub-clause 11.1.2 had to be interpreted in the context of the increase that had been provided for the rate for weekend work compared to the increase provided for Monday to Friday work.

[30] In conclusion, Mr Houlihan submitted that FWA should find that the terms of the Agreement were established on the basis that the $36 per hour figure, which was a substantial increase on the previous weekend rate, incorporated both casual loading and shift penalties.

Consideration

[31] The dispute in this matter has involved a contest about the meaning that should be given to particular words which appear in an industrial agreement. The approach to interpretation of industrial instruments is not a matter of strict statutory interpretation. Although the words in an industrial instrument may be given their plain literal meaning, it is well established that often it is appropriate to adopt a contextual and purposive approach broadly based upon authority established by a body of decision-making which is well summarised in the Silcar Decision as referred to above by Mr Houlihan.

Sub-clause 7.5.3

[32] The first sub-clause under examination is 7.5.3. This sub-clause unambiguously establishes that casual employees are to receive a 25% loading on the relevant minimum hourly rates. However a literal interpretation of the terms of this sub-clause would confine its operation to the Monday to Friday minimum hourly wage rates contained in sub-clause 12.1 of the Agreement. In consequence, it would not apply to the weekend minimum hourly wage rates which are set out in sub-clause 12.2. Thus the 25% casual loading provided by sub-clause 7.5.3 would have application only to Monday to Friday and would not apply to work on weekends.

[33] There were a variety of factors which were identified as providing support to reject the literal interpretation of sub clause 7.5.3.

[34] Firstly there was evidence that in an earlier draft of the agreement document, clause 12 contained a single table at 12.1 and the second table which separated weekend rates, 12.2, was introduced into the final version of the Agreement. Therefore in the earlier draft document the 25% casual loading applied to clause 12.1 which at that stage contained both Monday to Friday rates and weekend rates.

[35] Absent any deliberate intention to remove the 25% casual loading for weekend work, it would seem that when the final version of the document separated the weekend rates into a second table in the new sub-clause at 12.2, there should have been a consequent amendment made to sub-clause 7.5.3 by way of mention of the additional table, 12.2.

[36] Secondly, the evidence that was provided about the discussions that occurred at the EBA negotiating meeting held on 6 October demonstrated that at that time it was the intention of the parties, and an important aspect upon which agreement had been reached, that the casual loading would apply to the weekend rate and thereby generate an hourly figure of $45. On this point, the evidence provided by all witnesses for the TWU was consistent, plausible and believable. Further, this important aspect of the witness testimony was strongly supported by subsequent actions taken by those acting on behalf of Wettenhalls particularly as reflected in the text message evidence provided by Mr Clisby 4.

[37] In respect to this important evidentiary element for the determination of this matter it is necessary to note the absence of any evidence from Ms Waite. Although I was not specifically invited to draw an adverse inference from the absence of evidence from Ms Waite she was potentially the most important witness who may have been called for Wettenhalls. There was no explanation for the absence of any evidence from Ms Waite and there was no suggestion that there was any particular impediment to such evidence being provided. After careful consideration, and in accordance with the principles established in the case of Jones v Dunkel, 5 I am disposed to draw an adverse inference from the absence of evidence from Ms Waite.

[38] Thirdly, the practical consequences of removing the 25% casual loading and shift penalties from the weekend work created the unusual outcome whereby payment for work on a weekend would, in many instances, attract lesser payment than the same work performed between Monday and Friday. For example, a casual employee working an eight hour Saturday night shift would be paid at the flat rate of $36 amounting to a total of $288. In comparison, a casual working an eight hour week night shift would be paid $24.40 plus 25% = $30.50 per hour for 8 hours which equals $244, to which is added the shift penalty of $63.62, generating a total payment of $307.62.

[39] Fourthly, if sub-clause 7.5.3 was confined in its operation to work performed between Monday and Friday a significant concern would emerge as to whether the Agreement was capable of passing the better off overall test. The relevant Modern Award, the Road Transport and Distribution Award 2010 [MA000038], prescribed a corresponding minimum hourly rate for a casual working on a Sunday at $39.12 (or possibly $44.45 if Sunday was part of ordinary hours), the weekend rate in the Agreement without sub-clause 7.5.3 operating to add the 25% casual loading would be $36.00.

[40] Balanced against the factors which support an interpretation of sub-clause 7.5.3 to provide for it to operate for weekend rates, there were a number of countervailing factors which support the interpretation as urged by Wettenhalls.

[41] Firstly, the words contained in sub-clause 7.5.3 should be given their ordinary meaning unless some well founded basis is established to do otherwise. The reference to “clause 12.1” in sub-clause 7.5.3 is suggestive of a degree of deliberate precision. However an examination of various other clauses in the Agreement demonstrates that the document contains various inaccuracies with its cross-referencing to other terms contained in the Agreement.

[42] The Agreement, like many industrial instruments, is clearly not a document that has been constructed with the exercise of detailed legalistic scrutiny. Throughout the document there is little distinction made between references to clauses or sub-clauses and interestingly the draft document which contained only the one sub-clause 12.1 made reference at clause 6 Definitions to ordinary time rate as “clause 12.1or clause 12.2”. The Agreement document is not generally reflective of an instrument that could be comfortably interpreted on the basis that its prescriptions were made with sophistication and precision.

[43] Secondly, the EBA negotiations led to a disproportionate increase in the weekend rate compared to the Monday to Friday rate. Prior to the Agreement commencing operation there was an “arrangement” observed by Wettenhalls whereby a fixed rate of $23.69 per hour applied for all hours worked Monday to Friday and a weekend rate of $27.61 was paid for all weekend hours worked. The commencement rates negotiated in the Agreement increased the Monday to Friday rate by 71cents to $24.40 while the weekend rate was increased by $8.39 to $36.

[44] It was argued on behalf of Wettenhalls that the additional increase provided for the weekend rate was made on the basis that it comprehended the casual loading and shift penalty payments. This proposition does, at least potentially, present a plausible explanation for the additional increase provided for the weekend rate compared to the increase for the Monday to Friday rate.

[45] However there are three particular factors which operate to disprove the proposition that the larger increase in weekend rates was made with the conscious intention of comprehending the casual loading and shift penalties.

[46] The first factor was that there was no evidence of any discussions during the EBA negotiations which clearly identified that the increased weekend rate would comprehend both casual loading and shift penalties. Although the evidence of Mr Mann and Mr Olah stressed the use of the terminology “all inclusive rate” these words are used to describe both the Monday to Friday and weekend rates. The “all inclusive” terminology applies to the Monday to Friday rates which were established on the basis that they do not attract payment for overtime for hours worked in excess of eight hours per shift nor payment for any other allowances that may have been applicable.

[47] The second factor which assists the rejection that the weekend rate increase comprehended casual loading and shift penalty is that there is no mention of such payments having been incorporated into the weekend rate in sub-clause 12.3 which specifies other detailed aspects of the operation of the weekend rates.

[48] The third disproving factor involves the evidence of the historical inadequacy of the weekend rates that were paid prior to the operation of the Agreement. As was confirmed during the Hearing, the weekend rates paid prior to the commencement of the Agreement were lower than the relevant rates contained in the Modern Award.

[49] Aside from any pursuit of underpayments, it appeared that there was some underlying requirement to ensure that the weekend rates in the Agreement did not offend the Modern Award. This would mean that the weekend rates would need to be increased by more than the Monday to Friday rates in order to comprehend the penalty rates for weekend work fixed by sub-clause 28.1 of the Modern Award. As has been identified earlier this may not have been entirely successful.

Sub-clause 11.1.2

[50] The second sub-clause of the Agreement which was the subject of contested interpretation was 11.1.2. In something of an ironic “twist” the parties reversed their respective approaches to the interpretation that should apply to this sub-clause with the TWU advocating a more literal reading of the terms while Wettenhalls suggested that despite the wording of the sub-clause a different meaning should prevail.

[51] There is no expressed provision either in sub-clause 11.1.2 or elsewhere in the Agreement, which states that shift penalties would not apply to work on a weekend. Conversely the inclusion of the words “and day” in the text of sub-clause 11.1.2 strongly implies that shift penalties would have application to any and all days of the week.

[52] Further, as with the casual loading issue, there is no mention of the weekend rates being inclusive of shift penalties in the sub-clause which specifically details other aspects of the operation of the weekend rates, namely sub-clause 12.3. This sub-clause, 12.3, was a new provision introduced into the agreement document after the meeting of 6 October and it contains detailed prescriptions about the times at which the weekend rates apply. If the weekend rates were also to operate to the exclusion of any shift penalty payments (and casual loading) it would be highly likely that this sub-clause would have clarified those issues in the same way that it sought “To be clear” about the times that weekend rates were to apply.

[53] On reflection, it appeared that the issue involving the removal of shift penalty payments for weekend work may have developed as a consequence of the dispute arising about the casual loading being included in the weekend rate. The notion that the weekend rate was “all inclusive” would seem to have been opened to challenge if it included casual loading but not shift penalty. There was simply no evidence of any discussion during the EBA negotiations about shift penalties being included in the weekend rates.

Conclusion

[54] The determination of this matter has involved the interpretation of particular words in sub-clauses 7.5.3 and 11.1.2 of the Agreement. Although these two sub-clauses deal with different penalty payments, the dispute over their interpretation has involved an analysis of the same set of circumstances which underpinned the intention of the parties when agreement was reached to establish wage rates for weekend work. In simple terms, the question before FWA is whether the terms of the Agreement properly reflect what the parties understood to be included in the rates for weekend work.

[55] The words contained in the two sub-clauses should not be interpreted superficially or too broadly. The words should be given their plain ordinary meaning unless some manifest ambiguity or incongruity might be established. Further, the words must be interpreted having regard for the logical implications which might follow, particularly if the adoption of one interpretation might lead to an injustice such as a failure to meet other legislative requirements.

[56] In this instance my consideration of the various competing factors leads me to conclude that on weight and balance the terms of the two contested sub-clauses establish that the weekend rates contained in sub-clause 12.2 of the Agreement do not include or comprehend payment in respect to casual loading or shift penalties.

[57] Consequently sub-clause 7.5.3 of the Agreement is to be read so that it refers to clause 12 and is not confined in its operation to sub-clause 12.1 only. Accordingly I find that casual employees covered by the Agreement are entitled to be paid the 25% loading on both Monday to Friday and weekend rates.

[58] In addition, sub-clause 11.1.2 of the Agreement operates to provide shift penalties in respect to all days of the week, Monday to Friday and weekends, if the time at which the shift starts and finishes satisfies the shift definitions contained in sub-clause 11.1.1 of the Agreement. Accordingly I find that employees covered by the Agreement are entitled to be paid shift penalties if they are being paid either Monday to Friday rates per sub-clause 12.1 or the weekend rates as per sub-clause 12.2, provided that the shift satisfies the shift definitions set out in sub-clause 11.1.1 of the Agreement.

[59] In view of the conclusions that I have reached and the findings that I have made, the parties are advised that if Orders reflecting this Decision are required, an appropriate written application including draft Orders, should be made within 21 days from the date of this Decision.

COMMISSIONER

Appearances:

Mr T. Warnes, together with Ms J. Cindric, on behalf of the TWU.

Mr D. Houlihan, on behalf of Wettenhalls.

Hearing details:

2012.
Sydney:
June, 27 & 28.

 1   Exhibit 1 - Attachment “A”.

 2   Exhibit 1 - Attachment “A”.

 3   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd [2011] FWAFB2555.

 4   Exhibit 7 Attachments “A” and “B”.

 5 Jones v Dunkel (1959) 101 CLR 298.

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