Transport Workers' Union of Australia v Wymap Group Pty Ltd

[2014] FWC 835

[2014] FWC 835 [Note: An appeal pursuant to s.604 (C2014/3444) was lodged against this decision - refer to Full Bench decision dated 26 May 2014 [[2014] FWCFB 3484] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Wymap Group Pty Ltd
(C2014/2637)

COMMISSIONER ROBERTS SYDNEY, 25 FEBRUARY 2014

Application pursuant to s.739 - overtime shifts worked on Sundays - whether such work attracts the accrual of additional annual leave.

[1] This decision concerns an application made by the Transport Workers’ Union of Australia (the TWU or the Union) made on 13 January 2014, pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute between it and Wymap Group Pty Ltd (Wymap or the Company). The dispute was referred to the Commission pursuant to clause 13 (Dispute Resolution) of the Wymap Group Collective Agreement 2012 (the Agreement). That clause provides the steps to be followed when a dispute arises as to matters covered by the Agreement. The clause ultimately provides that where a dispute cannot be resolved between the parties then it is to be referred to Fair Work Australia (now the Fair Work Commission) “which will have the power of conciliation and arbitration conferred upon Fair work Australia under the Fair work Act 2009.” The parties to the Agreement are Wymap and the TWU.

[2] Unsuccessful conciliation was conducted before me on 30 January 2014. The TWU then requested that I determine the dispute regarding the application of the Agreement by arbitration.

[3] Directions were issued on 30 January 2014 for the filing and service of outlines of submissions, witness statements and other materials. Those directions were complied with and the matter proceeded to hearing in Sydney on 18 February 2014. At the hearing before me, the TWU was represented by Mr A Guy with Mr R Burke and Wymap was represented by Mr G Selig with Mr L Sharp. Mr Selig appeared by permission.

What is the dispute about?

[4] Mr T Owen is a medium rigid truck driver employed full time by Wymap pursuant to the terms of the Agreement. Mr Owen commenced employment with the Company around March 2010. He is ordinarily rostered to work Monday to Friday but, in addition to those ordinary hours, he has worked more than 27 Sunday shifts over the past twelve months. It is common ground between the parties that Mr Owen’s Sunday shifts are worked as overtime and are offered to employees on the basis that they can decline to work that overtime if they so wish.

[5] The TWU claims that the correct application of clause 10.1(d) of the Agreement entitles Mr Owen (or any other employee in a similar situation) to be credited with an additional week’s annual leave. Wymap maintains that Mr Owen is not entitled to an additional week’s leave as alleged by the TWU. Clause 10.1(d) states:

“(d) Any employee who is rostered to work 27 Sundays or more in a twelve (12) month period is entitled to an additional one (1) weeks annual leave in that year.”

[6] Wymap says that Mr Owen is not entitled to the benefits of clause 10.1(d) as his rostered shifts occur over Monday to Friday and the work he performs on Sundays is not rostered but rather is overtime performed on a voluntary basis. There is no dispute between the parties that Mr Owen has worked more than 27 Sunday shifts over the past twelve months.

[7] The TWU maintains the terms of clause 10.1(d), if correctly applied to Mr Owen’s situation, are to be read as if the words is ‘rostered to work’ in clause 10.1(d) have the same meaning and intent as ‘works’. The TWU alleged that the word ‘rostered’ when given its ordinary meaning means “that at the point of work being allocated to the driver, that driver becomes ‘rostered’ to work a weekend shift.” 1 To support this contention, the TWU relied in part on the fact that Wymap does not issue formal rosters.

[8] The TWU seeks the making of the following orders:

“a. an employee is ‘rostered’ to work under the Agreement when they are allocated work by the Respondent. This includes weekend work outside of ordinary hours which an employee indicates that they are available to work; and

b. Mr Tony Owen, having being rostered in excess of 27 Sunday shifts in the past 12 months is entitled to an additional one weeks leave under clause 10.1(d) of the Agreement.” 2

Evidence

Mr Owen

[9] Mr Owen gave sworn evidence and submitted a witness statement 3. In his statement, Mr Owen said that about three years ago he changed from casual to full time employment and was assigned to a particular customer of Wymap “on a Monday to Friday, five day a week contract.” Since that time, he has been required to present himself at work at 4.30 am each day and to provide service to the customer until the day’s deliveries are completed. There is no formal weekly roster.

[10] Mr Owen went on to say that on Tuesdays a supervisor sends out a text message to all drivers asking for information about their availability to work on the next weekend. “I will then reply with a text message confirming my availability.” On Fridays, the supervisor sends a further text message confirming the start time and work allocation for weekend work when Mr Owen indicated his availability to do such work.

[11] Nothing of significance to my deliberation arose from the cross-examination of Mr Owen.

Mr Sharp

[12] Mr Sharp gave sworn evidence and submitted a witness statement 4. In his statement, Mr Sharp said that he is the General Manager of Wymap. He went on to give some history of the Agreement and the dispute with Mr Owen and the TWU.

[13] Mr Sharp went on to say that he had had discussions with Mr Owen concerning the alleged entitlement to an extra week’s leave and had informed him that such additional leave was only available to employees who were required to work on Sundays as part of their normal weekly hours. In Mr Owen’s case: “These shifts had been offered to [him] as overtime and were not scheduled or rostered. These shifts were (and are still) ‘ad hoc’ and depend totally on work volumes. Mr Owen’s attendance on these days was not compulsory, due to the overtime nature of the shift. On the days that Mr Owen worked, his start time varied depending on the work that was to be done.”

[14] Mr Sharp went on to say that Mr Owen had “stated that he did not want to be committed to every Sunday on a compulsory basis due to family commitments.” Mr Sharp then dealt with how overtime work on Sundays is arranged and that evidence was in line with that of Mr Owen. Attached to Mr Sharp’s witness statement were copies of various text messages between the Company and Mr Owen concerning Sunday work.

[15] In cross-examination, Mr Sharp agreed that Mr Owen would need to offer an explanation if he did not attend for an overtime shift on a Sunday after agreeing to do such work. 5

Conclusions and determination

[16] In reaching my conclusions and determination, I have paid full regard to all of the evidence, submissions, materials and case law put before me during proceedings.

[17] In essence, the question before me is not a complicated one. It is not contentious that Mr Owen works under some form of contract to perform his ordinary hours of work, commencing at 4.30 am on each day Monday to Friday inclusive. It is further not contentious that Mr Owen is regularly offered Sunday work, which he is free to accept or decline. The key question here is whether the Sunday work performed by Mr Owen, or someone in a like position, constitutes rostered work and therefore attracts the additional week’s loading provided for in clause 10.1(d) of the Agreement.

[18] In written submissions, Wymap drew my attention to a decision of Vice President Lawler in Watson v ACT Department of Disability, Housing and Community Services 6 where his Honour cited the decision in Kucks v CSR Limited7:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. 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.” 8

[19] The nature of the Sunday work performed by Mr Owen is important. The performance of such work is voluntary and the hours to be worked are variable. Unlike his normal Monday to Friday work which involves a set start time.

[20] It is plainly apparent to me that the type of work performed by Mr Owen on Sundays does not form part of any roster but is clearly voluntary overtime and compensated at the appropriate rate. That rate takes into account all factors associated with any possible disability arising from performing work on a Sunday and most certainly does not attract the attention of clause 10.1(d) of the Agreement. Other employees of Wymap are rostered to perform work on Sundays as part of their normal weekly hours and the intention of clause 10.1(d) is clearly meant to apply to such persons, not to persons such as Mr Owen.

[21] Accordingly, I determine that the Company is correctly applying the relevant terms of the Agreement and the TWU’s application is dismissed.

COMMISSIONER

Appearances:

A Guy with R Burke for the Transport Workers’ Union of Australia.

G Selig with L Sharp for Wymap Group Pty Ltd.

Hearing details:

2014.

Sydney:

February 18.

 1   See Exhibit TWU 1.

 2   Ibid.

 3   Exhibit TWU 3.

 4   Exhibit Wymap 2.

 5   Transcript PN146.

 6   [2008] AIRC 291.

 7 (1996) 66 IR 182 per Madgwick J.

 8 Ibid at [9].

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