TT-Line Company Pty Ltd
[2022] FWC 2662
•20 OCTOBER 2022
| [2022] FWC 2662 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
TT-Line Company Pty Ltd
(AG2022/3513)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 20 OCTOBER 2022 |
Application for approval of the TT Line Shore Based Employees Enterprise Agreement 2020
Before the Commission is an application for the approval of an enterprise agreement known as the TT Line Shore Based Employees Enterprise Agreement 2020 (Proposed Agreement). The Proposed Agreement was made on 8 August 2022 when a majority of employees employed by TT-Line Company Pty Ltd (TT-Line) at the time who would be covered by the Proposed Agreement voted to approve it.
By application dated 22 August 2022, TT-Line has applied to the Commission pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act) for the Proposed Agreement to be approved. The Proposed Agreement is a single enterprise Agreement for which the Construction, Forestry, Maritime, Mining and Energy Union – the Maritime Union of Australia Division, Tasmania Branch (MUA) is a bargaining representative.
The Proposed Agreement does not define a “shiftworker” for the purposes of the National Employment Standards (NES) or otherwise. On 31 August 2022, upon review of the Proposed Agreement, the Commission raised with the parties the question of whether any employee classifications under the Proposed Agreement perform shiftwork within the meaning of clause 25 of the Clerks - Private Sector Award 2020 (Clerks Award).
The MUA contends that the answer to this question is “yes” insofar as it relates to employees engaged by TT-Line to work in Group C or Group D classifications under the Proposed Agreement. TT-Line says that the answer is “no.” While TT-Line proffered undertakings to address the issue, the MUA submits that they do not resolve the concern, such that the Proposed Agreement cannot be approved.
Context
TT-Line is an employer in the maritime industry. It operates a shipping line which transports passengers and other cargo between Victoria and Tasmania. It operates two ships, the Spirit of Tasmania I and the Spirit of Tasmania II.[1] The vessels operate 24 hours a day, seven days a week.[2]
A majority of TT-Line’s employees are covered by either the TT Line Shore Based Employees Enterprise Agreement 2016 (Shore Based Agreement) or the TT-Line Company Pty Ltd & MUA Seagoing Employees, Retail & Hospitality Management and In Port Workers Enterprise Agreement 2017 (Seagoing Agreement).[3]
Employees covered by the Seagoing Agreement include the seafarers involved vessel operations and other staff who work on board, for example hospitality staff. Employees covered by the Seagoing Award work to a 24/7 roster.[4]
Employees covered by the Shore Based Agreement work at the terminals on either end of the journey and perform functions such as those related to ticketing, passenger check-in, cargo booking, and other clerical functions.[5] No employees covered by the Shore Based Agreement and, by extension, the Proposed Agreement work to a 24/7 roster.[6]
The MUA is entitled to represent the industrial interests of employees covered by both the Shore Based Agreement and Seagoing Agreement and is covered by those agreements.[7]
The Proposed Agreement
The Proposed Agreement is expressed to cover TT-Line, the MUA and shore based employees who are engaged within the classification structure in clause 9. Clause 9 deals with the engagement of employees. Clause 10 is titled “Classification Structure” and provides relevantly as follows:
“10.1 Introduction
The parties recognise that the Employer’s business is a seven (7) day per week operation, and accordingly, if [sic] it necessary to establish and define four discrete groups of Employees which will be defined in the position description…”
The four discrete groups referred to at clause 10.1 of the Proposed Agreement are set out at clauses 10.1.1 to 10.1.4 and are identified as Group A, Group B, Group C and Group D employees.
In summary, Group A employees are employees “who may be rostered to work over 7 days…” Group B employees are defined to mean “employees who will only be rostered to work within the Spread of Hours specified by Clause 14 over the period Monday to Friday.” The circumstances of Group A and Group B employees do not arise for consideration in this decision.
The focus of the parties’ submissions in this application are in respect of Group C and Group D employees, which are dealt with in clauses 10.1.3 and 10.1.4 of the Proposed Agreement. These provisions relevantly provide as follows:
“10.1.3 Group C Employees
Employees work a weekend roster working 1 in 2 weekends with the spread of hours 5.45am to 9:30pm as per Clause 14.
Overtime will apply only when work is performed outside the spread of hours and public holidays.
The salaries prescribed by the classification structure for Group C employees are annualised salaries, to the extent that they include payment for weekend work.
Hours per year required for full-time work will be equated on a 66.5 per fortnight 1729 per year…
10.1.14 Group D Employees
Employees work a weekend roster working 1 in 3 weekends within the spread of hours 5.45am to 9.30pm as per Clause 14.
Hours per year required for full-time work will be equated on a 73 hours per fortnight 1898 per year.
Overtime will apply when working outside the spread of hours and additional
weekends.The salaries prescribed by the classification structure for Group D are annualised salaries, to the extent that they include payment for weekend work.”
Clause 21 of the Proposed Agreement concerns annual leave. It relevantly provides the following:
“21.1 Entitlement
The Employer will grant:
21.1.1 A full-time Employee 20 days of annual leave or 146 hours on the completion of a year’s continuous service;
21.1.2 Group C will accrue 133.00 hours based on a fortnight working 66.5 hours. Annual leave accrues progressively.
21.1.3 A part-time Employee will be entitled to annual leave on a pro rata basis.”
The Clerks Award
It is not in dispute that the Clerks Award covers TT-Line and the employees covered by the Proposed Agreement.[8] The Commission has conducted its initial assessment of the Proposed Agreement against the Clerks Award.
The Clerks Award relevantly provides the following at Part 6 – Shiftwork:
“25. Application of Part
25.1Part 6 applies to employees who are required to work their ordinary hours on any of the following shifts:
(a) a shift finishing after 7.00 pm and at or before midnight (afternoon shift);
(b) a shift finishing after midnight, and at or before 7.00 am (night shift);
(c) a night shift which does not rotate with another shift or shifts or day work and which continues for a period of 4 consecutive weeks or longer (permanent night shift).”
Part 7 of the Clerks Award concerns leave and public holidays. Clause 32 deals with annual leave and relevantly provides the following:
“32.1 Annual leave is provided for in the NES.
32.2 Additional paid annual leave for certain shiftworkers
(a) Clause 32.2 applies to an employee who is a shiftworker regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for 7 days a week.
(b) The employee is a shiftworker for the purposes of the NES (entitlement to an additional week of paid annual leave).”
Agreed facts
It is not in dispute that:[9]
(a) Group C and Group D employees perform shiftwork for the purposes of Part 6 of the Clerks Award in that they are required to work ordinary hours on afternoon shift as defined in clause 25.1(a) of the Clerks Award.
(b) The Proposed Agreement does not define shiftworkers for the purposes of the NES.
(c) Group C employees under the Proposed Agreement are rostered to work 26 Sundays each year.
(d) Group D employees under the Proposed Agreement are rostered to work approximately 17 Sundays each year.
(e) The number of public holidays worked by either Group C or Group D employees varies, depending on an individual’s roster pattern.
The relevant law
Part 2-2 of the Act contains the NES, and Division 6 concerns annual leave. The minimum entitlement to paid annual leave is four weeks for each year of service.[10] By s 87(1)(b) of the Act, an employee will be entitled to five weeks of paid annual leave if:
(a) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the NES; or
(b) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the NES; or
(c) the employee qualifies for the shiftworker annual leave entitlement under s 87(3) (this relates to award/agreement free employees).
The note to s 87 of the Act provides the following:
“Section 196 affects whether the FWC may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.”
Section 196 of the Act appears in Subdivision E of Division 4 of Part 2-4. Subdivision E concerns approval requirements relating to particular kinds of employees including shiftworkers. Section 196 provides:
“Application of this section
(1) This section applies if:
(a) an employee is covered by an enterprise agreement; and
(b) a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.
Shiftworkers and the National Employment Standards
(2) The FWC must be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.
Note: Section 87 provides an employee with an entitlement to 5 weeks of paid annual leave if an enterprise agreement that applies to the employee defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.”
Section 187 of the Act sets out additional requirements that must be met before the Commission may approve an enterprise agreement.[11] By s 187(4), the Commission must be satisfied that the provisions of Subdivision E have been complied with. The effect of s 187(4) is that satisfaction of s 196, which is referred to in the note to s 87(1), is a pre-requisite for the approval of an enterprise agreement.[12]
I respectfully adopt the position expressed by the Full Bench in RACV Road Service Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union,[13] which summarised the effect of ss 87, 196 and 187(4) of the Act in the following way:
“It is apparent from the above provisions that:
·An employee covered by an enterprise agreement will only have an NES entitlement to five weeks’ annual leave if the enterprise agreement defines the employee to be a shiftworker for the purposes of the NES.
·If an operative modern award covers an employee and defines the employee as a shiftworker for the purposes of the NES, any enterprise agreement which also covers that employee must also define the employee as a shiftworker for the purposes of the NES.
·If an enterprise agreement does not define the employee as a shiftworker for the purposes of the NES in circumstances where the modern award covering the employee does, then the enterprise agreement cannot be approved (unless the matter is dealt with by acceptance of a suitable undertaking under s 190).”
Further, the Full Bench in Ramsay Health Care Australia Pty Ltd v The Australian Workers’ Union of Employees[14] rejected the contention that all that is required to meet the requirements of s 196 in an agreement is a definition of shiftworker for the purposes of the NES, regardless of the precise definition. The construction favoured by the Full Bench was that the definition of a shiftworker for the purposes of the NES in a relevant award sets the minimum standard which is to be “maintained” in an agreement. A definition in narrower terms than the relevant award would undermine the safety net provided by the NES if fewer employees qualified for the additional week of paid annual leave under the agreement when compared to the award.[15]
Notwithstanding this, the Full Bench accepted that a definition of shiftworker for the purposes of the NES in an agreement need not be in identical terms to the relevant award definition. Consistent with s 55 of the Act, the Full Bench contemplated that a definition in an agreement may provide an entitlement to an additional week of annual leave to more employees than under a relevant award but did not make a conclusive finding in the circumstances.[16]
The respective positions
The MUA submits that the issue requires the interpretation of clause 32.2 of the Clerks Award in order to determine two threshold questions. Firstly, whether the shiftworkers covered by the Proposed Agreement “regularly work Sundays and public holidays.” The MUA submits that they do. Secondly, whether the “business in which shifts are continuously rostered” 24/7 for the purposes of clause 32.2 of the Clerks Award is TT-Line’s business overall. The MUA submits that it is.
The MUA’s position is that if the Commission concurs with its view and answers each of these questions in the affirmative, the Commission cannot approve the Proposed Agreement in the absence of an undertaking from TT-Line that satisfies s 196(2) of the Act. The MUA has proffered two undertakings which it considers would resolve the concern.[17]
TT-Line submits that the MUA relies on an overly technical interpretation of clause 32.2 of the Clerks Award, which seeks to include an additional paid leave entitlement beyond that which was intended and agreed to in the Proposed Agreement.
TT-Line’s position is that Group C and Group D employees do not work to a 24/7 roster. Even if they did, TT Line says that they do not regularly work on Sundays and public holidays. Accordingly, TT-Line submits that despite performing work on afternoon shift as defined in clause 25.1(a) of the Clerks Award, Group C and Group D employees are not shiftworkers for the purposes of the NES.
Consideration
The issue before me requires determination of whether an employee covered by the Proposed Agreement can be defined or described as a shiftworker for the purposes of the NES pursuant to clause 32.2(a) of the Clerks Award.[18]
It is therefore necessary to consider the proper construction of clause 32.2 of the Clerks Award. The principles applicable to the construction of awards are well-settled and were recently summarised by the Federal Court in Association of Professional Engineers, Scientists and Managers Australia v Peabody Energy Australia Coal Pty Ltd:[19]
“First, because an award is an “instrument”, the provisions of the Acts Interpretation Act 1901 (Cth) apply to an award as if it were an Act, and as if each provision of the award were a section of an Act: see s 46 of the Interpretation Act; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; [2006] FCA 813 at [52] (French J); Construction, Forestry, Mining and Energy Union (Construction and General Division) v Master Builders’ Group Training Scheme Inc (2007) 161 IR 86; [2007] FCA 435 at [33] (Besanko J); see also s 13 of the Legislation Act 2003 (Cth), which is a parallel provision to s 46 of the Interpretation Act in respect of legislative instruments. Section 15AA of the Interpretation Act, which provides that an interpretation which promotes the purpose or object underlying the Act should be preferred to one that does not, and s 15AB of the Interpretation Act, which deals with the use of extrinsic material, may be of particular relevance: City of Wanneroo at [54]; Master Builders’ at [33].
Second, the starting point is generally a consideration of the ordinary meaning of the words in the award: City of Wanneroo at [53]. The words used in awards, however, are not to be construed “in a vacuum divorced from industrial realities” (City of Wanneroo at [57]) and “narrow or pedantic approaches to the interpretation of an award are misplaced”: Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); see also Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J); Prestige Property Services Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2007) 161 FCR 95; [2007] FCAFC 137 at [56] (North and Mansfield JJ); Zadar v Truck Moves Australia Pty Ltd [2016] FCAFC 83 at [26]-[27] (Flick J); Amcor Limited v Construction Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 at 246 (Gleeson CJ and McHugh J).
Third, regard must also be had to context, which includes “context which may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction”: City of Wanneroo at [53]. Context may also extend to “other documents with which there is an association” and, in some cases, even “ideas that gave rise to an expression in a document from which it has been taken”: Short v FW Hercus Pty Ltd (1993) 40 FCR 511; [1993] FCA 72 at 518 (Burchett J); City of Wanneroo at [53]. The “circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use”: Hercus at 517.“
While recourse may be had to a range of matters to understand the meaning of a term in a modern award where an ambiguity arises, the following analysis is conducted for the purpose of ascertaining the contextual meaning of clause 32.2 of the Clerks Award.[20]
History of the entitlement and the relevant provision in the Clerks Award
Traditionally, the rationale for the entitlement to an additional week of annual leave is that an employee may be rostered to work Sundays and public holidays, and this would impact their leisure time.[21] The entitlement is based on the idea that a person working shifts evenly spread across all hours of the week would necessarily be regularly rostered to work on Sundays and public holidays.[22] A continuous roster was the type of roster which initially attracted the entitlement to an additional week of annual leave.[23]
The history of the Clerks Award provides relevant background. The exposure draft to the Clerks Award dated September 2008 contained the following clause:
“26.2 Definition of shift worker
For the purpose of the additional week of annual leave provided for in the NES, a “shift worker” is a seven day shift worker who is regularly rostered to work on Sundays and public holidays.”
The provision was varied and on 11 September 2009, the entitlement was as follows:[24]
“30.2 Definition of shiftworker
For the purpose of the additional week of annual leave provided for in the NES, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for seven days a week.”
The Clerks Award is said to be “be based on existing federal awards and NAPSAs including some predominantly industry-based State awards.”[25] The pre-reform awards provide various definitions of shiftworker in relation to an analogous entitlement to an additional week of annual leave. However, the various definitions of shiftworker for the purposes of the analogous entitlement in these pre-reform awards bear little on the proper construction of clause 32.2 of the Clerks Award. This is because the definition of shiftworker for the purposes of the NES in the iteration of the Clerks Award set out at [35] above more closely resembles the legislative definition of shiftworker for the purposes of an additional week of annual leave under the Workplace Relations Act 1996 (Cth) than any of these definitions.[26]
As part of the Commission’s plain language re-drafting of modern awards, the words “seven day” were removed from the definition on the basis that (a) the term “seven day shiftworker” was not otherwise used in the Clerks Award and (b) removing the words would provide greater consistency with the terminology of the NES.[27] In most cases, the words “seven day shiftworker” establishes a condition that a person be rostered to work all of the seven days of the week.[28] However, doubt has been cast upon constructions which seek to impose such a requirement in circumstances where there is a condition that “shifts are continuously rostered 24 hours a day for 7 days a week” and the employee is regularly rostered to work Sundays and public holidays.[29] I therefore consider this change to be of little assistance in construing clause 32.2(a) for present purposes.
Clause 32.2 of the Clerks Award now reads as follows:
“32.2 Additional paid annual leave for certain shiftworkers
(a) Clause 32.2 applies to an employee who is a shiftworker regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for 7 days a week.
(b) The employee is a shiftworker for the purposes of the NES (entitlement to an additional week of paid annual leave).”
The second question
It is necessary only to consider the MUA’s second question, which focuses attention the words “an employee who is a shiftworker…in a business in which shifts are continuously rostered 24 hours a day for 7 days a week.”
The MUA contends that – provided the shiftworkers under the Proposed Agreement regularly work Sundays and public holidays – clause 32.2(a) is satisfied where an employee works a business in which shifts are continuously rostered 24 hours a day for seven days a week. It is not to the point, it says, that the employees who work to a 24 hour a day 7 day a week roster are covered by a different agreement to the Proposed Agreement.
The MUA’s construction may be understood on an isolated reading of clause 32.2(a) of the Clerks Award. Nevertheless, for the reasons that follow, I consider this to be an incorrect construction.
The word “business,” as used in clause 32.2(a), is not defined in the Clerks Award and is seldom used. It follows that it should take its ordinary meaning.
Section 87(3) of the Act defines shiftworker for award/agreement free employees in the following terms:
(a) the employee:
(i)is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and
(ii)is regularly rostered to work those shifts; and
(iii)regularly works on Sundays and public holidays…
(emphasis added)
The above definition closely resembles the definition of shiftworker in s 228(1) of the Workplace Relations Act 1996 (Cth), with some minor differences. The most significant of these differences is that the Workplace Relations Act used the term “business” instead of “enterprise,” which more precisely reflects the wording of clause 32.2(a) of the Clerks Award.
Clause 32.2(a) of the Clerks Award omits the condition addressed at s 87(3)(a)(ii) of the Act that an employee “is regularly rostered to work those shifts,” being the shifts on a continuous roster. The absence of a provision in terms similar to s 87(3)(a)(ii) in the Clerks Award may give rise to an inference that there is no requirement under the Clerks Award for an employee to actually be rostered to work “those shifts.” However, it is equally open to infer that the definition in clause 32.2(a) of the Clerks Award is a reduction of the legislative definitions in both the Act and the Workplace Relations Act and was intended to retain the same meaning but that the condition in s 87(3)(a)(ii) was superfluous in a modern award that defines a shiftworker pursuant to s 87(1)(b)(i).
The definition of shiftworker in s 87(3) of the Act refers to a discrete condition that “the employee” “is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week.” This is in similar terms to the position under the Workplace Relations Act which defined a shiftworker as an employee who “is employed in a business in which shifts are continuously rostered 24 hours a day for 7 days a week.” By comparison, clause 32.2(a) of the Clerks Award applies “to an employee who is a shiftworker regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for 7 days a week.” It suffices to observe one difference between the legislative definitions and the text of the Clerks Award, being the absence of the words “is employed in a” business in clause 32.2(a). I consider that the difference demonstrates that a shiftworker’s employment in a business in which shifts are continuously rostered is not the express focus of clause 32.2(a).
The principles of construction dictate that the language of the Clerks Award be read as a whole and in context,[30] and not in segmented groups of words read with no regard to context.
The concepts of “shiftworkers,” “shifts” and rostering arrangements for shiftworkers, are concepts developed elsewhere in the Clerks Award and therefore the words as they appear in clause 32.2(a) must be understood in this context.
The Clerks Award distinguishes between shiftworkers, and employees other than shiftworkers. The significance of this distinction is that the conditions largely contained in Part 6 of the Clerks Award apply to shiftworkers, but do not apply to employees other than shiftworkers. For example, the ordinary hours of work and rostering for shiftworkers prescribe a maximum of six shifts over the period of a week, which may include a Sunday. There is a maximum of 10 ordinary hours including breaks per shift.[31] There are rest periods prescribed for shiftworkers after working overtime, including for the purposes of changing shift rosters.[32] Employees working shifts are entitled to meal breaks and rest breaks.[33] Overtime for shiftworkers is payable when working more than the maximum daily[34] or weekly[35] hours.[36] There are penalty rates for shiftwork for “an employee working ordinary hours on shifts in accordance with clause 25.”[37] For all hours worked on Saturdays, Sundays or public holidays shiftworkers are entitled to a penalty of 150%.[38]
Clause 25.1 of the Clerks Award defines an afternoon shift as a shift finishing after 7.00 pm and at or before midnight. A night shift is a shift finishing after midnight, and at or before 7.00 am. A permanent night shift is defined as “a night shift which does not rotate with another shift or shifts or day work…” A “shiftworker” is an employee who is required to work their “ordinary hours” on “any” of the afternoon, night or permanent night shifts.[39] Accordingly, clause 25.1 is as much a definition of shiftworker as it is a delineation of the shift pattern under the Clerks Award.
Clause 26 - Ordinary hours of work and rostering for shiftwork prescribes the manner in which ordinary hours may be rostered for shiftworkers. There is no spread of ordinary hours for shiftworkers. By contrast, the spread of ordinary hours of work for employees other than shiftworkers is between 7:00 am and 7:00 pm Monday to Friday and 7.00 am and 12.30 pm on Saturday.[40]
If an employee works their ordinary hours on “any” of the shifts in clause 25.1, then that employee retains the status of shiftworker when working hours other than the afternoon, night or permanent night shifts. This is so notwithstanding that clause 25.1 does not expressly account for a shift during these periods.[41]
It follows that the Clerks Award supports a roster whereby shiftworkers work shifts continuously rostered 24 hours a day for 7 days a week. The Clerks Award also enables a business to roster its employees continuously 24 hours a day for 7 days a week with a combination of shiftworkers and employees other than shiftworkers. I note neither circumstance arises in respect of the employees the subject of this decision.
The operation of the Clerks Award can therefore be contrasted with the Hair and Beauty Industry Award 2020. As part of the plain language re-drafting process arising from the 4-yearly review of modern awards, the Commission removed from that award the entitlement to an additional week of paid annual leave in a clause in materially the same terms as clause 32.2(a) of the Clerks Award. It did so on the basis that the Hair and Beauty Industry Award did not include any shift loadings or other provisions regulating shift work, such that retention of the provision was inutile.[42]
Having regard to the matters above it is apparent that the Clerks Award has a meaning of “shifts,” “shiftworker” and rostering arrangements for shiftworkers distinct from other instruments or any ordinary or industrial meaning. Significantly, the “shifts” which “shiftworkers” may be rostered to work under the Clerks Award are capable of being continuously rostered 24 hours a day 7 days a week by way of the afternoon shift, the night shift and the shifts which are not afternoon shifts or night shifts. I consider that the “shifts” in clause 32.2(a) means the “shifts” on which “shiftworkers” may be “continuously rostered 24 hours a day for 7 days a week.”
Further, the legislative context and the related purpose of clause 32.2 is relevant in ascertaining its meaning.[43] Clause 32.2 concerns additional annual leave for “certain shiftworkers.” Clause 32.2(a) provides such an entitlement to “an employee who is a shiftworker regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for 7 days a week.” I consider that the purpose of clause 32.2(a) is to provide an entitlement to an additional week of annual leave for “certain shiftworkers” pursuant to s 87(1)(b)(i) of the Act, and to distinguish those “certain shiftworkers” from other shiftworkers under the Clerks Award by prescribing conditions to the entitlement.
Reading the condition concerning the roster pattern of shifts as meaning the “shifts” of the “shiftworker” logically achieves the purpose of clause 32.2. It confines the subset of shiftworkers to whom the entitlement applies to those working to a particular roster. In this respect, I observe that the conditions to the entitlement to an additional week of paid annual leave in other awards, other than the provisions which mirror clause 32.2 of the Clerks Award, are concerned with the shifts worked by the shiftworker, or the roster system or regular roster of the shiftworker, and not the business in which that shiftworker is employed.[44]
Conversely, if the condition established by the words “in a business in which shifts are continuously rostered 24 hours a day for 7 days a week” is satisfied where any shift pattern in a business is continuously rostered 24 hours a day for 7 days of the week then the condition is not meaningfully connected to the entitlement and gives rise to arbitrary outcomes. In the present case, the arbitrariness arises from the provision of an additional week of paid annual leave to shore based clerical employees who do not work to a continuous roster. Instead, simply by virtue of their employment in a business in which seafarers under a separate enterprise agreement perform shifts 24 hours a day for 7 days a week, it is contended by the MUA that the clerical employees are entitled to an additional week of annual leave.
The following example demonstrates the arbitrariness. It may be the case that a clerical worker in a different business with no continuous operations performs the same work, pursuant to the same working hours as the Group C and D employees under the Proposed Agreement. On the MUA’s construction – assuming the employees regularly worked Sundays and public holidays – these employees would not be entitled to an additional week of annual leave. This illustrates that a connection between a condition and an entitlement is significant to avoid arbitrary outcomes for employees performing the same hours of work.
The MUA submits that there is nothing in the text of clause 32.2(a) which justifies departing from the plain reading of the word “business” as meaning the employer’s “overall business.” The MUA says that it is not to the point that the employees covered by the Seagoing Award may be considered geographically, operationally or organisationally distinct from the relevant employees covered by the Proposed Agreement. However, the extent of the MUA’s submissions with respect to the potential arbitrariness arising from its construction is limited to a submission that the relevant employees under the Proposed Agreement work solely in support of a 24 hours a day 7 day a week operation.
Having regard to the above matters, I do not accept the MUA’s construction of clause 32.2(a). It gives an unnecessarily expansive construction to the word “shifts” as meaning “any shifts” in the business and thereby creates an arbitrary condition to the entitlement to an additional week of paid annual leave.
Finally, as a matter of broader context, the Clerks Award is an instrument applying to a defined group of employees and employers.[45] It follows that clause 32.2(a) should be read in a manner which confers rights, obligations and entitlements, and conditions to those rights, obligations and entitlements, on the employees and employers subject to the award. It follows that the conditions in clause 32.2(a) should be read as applicable or relevant to employees covered by the Clerks Award. Without express indication to the contrary,[46] arrangements under other instruments should not bear upon the satisfaction of conditions under the Clerks Award.
Application to the Proposed Agreement
The Proposed Agreement does not provide for a night shift. Consistent with my conclusion as to the proper construction of clause 32.2(a) of the Clerks Award, I do not consider that Group C and Group D shiftworkers under the Proposed Agreement are capable being rostered in satisfaction of the conditions in clause 32.2(a) and are thereby incapable of being defined or described as shiftworkers for the purposes of the NES under clause 32.2(b) of the Clerks Award.
In light of this conclusion, it is unnecessary to consider the MUA’s contention that Group C and Group D employees regularly work Sundays and public holidays.
It follows that an undertaking is not required pursuant to s 196(2) of the Act.
Other matters
In response to preliminary concerns raised with the parties by the Commission following a review of the Proposed Agreement, TT-Line proffered undertakings in respect of the following matters:
(a) the expression of the entitlement to annual leave in days and hours at clause 21.1 of the Proposed Agreement; and
(b) the withholding of monies due to an employee who fails to give notice of termination under clause 29.2.2 of the Proposed Agreement.
The MUA will be given a period of two business days to provide its response to the undertakings proffered by TT-Line in respect of these matters on 2 September 2022.
DEPUTY PRESIDENT
[1] Statement of agreed facts filed 20 September 2022 (Statement of agreed facts) at [1]
[2] Statement of agreed facts at [13]
[3] Statement of agreed facts at [2]
[4] Statement of agreed facts at [13]
[5] Statement of agreed facts at [3]
[6] Statement of agreed facts at [12]
[7] Statement of agreed facts at [6]
[8] Form F17 at 8; Union’s outline of submissions dated 7 September 2022 at [3]
[9] Statement of agreed facts at [8], [14], [15], [16] and [17]
[10] Fair Work Act 2009 (Cth), s 87(1)(a)
[11] Fair Work Act 2009 (Cth), s 187(1)
[12] RACV Road Service Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union[2015] FWCFB 8554 at [6]
[13] [2015] FWCFB 8554 at [7]
[14] [2012] FWAFB 4033; (2012) 221 IR 39
[15] Ibid at [24]-[27]
[16] Ibid at [28]
[17] Union’s outline of submissions dated 20 September 2022 at [29] and [30]
[18] See, Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2019] FWC 8000 at [24]-[26]
[19] [2022] FCA 945 at [67]-[70]; see also, D'Sylva v Ellenbrook Family Medical Centre Pty Ltd [2021] FedCFamC2G 19 at [38]; The Australian Workers’ Union - West Australia Branch v Co-operative Bulk Handling Limited[2010] FWAFB 4801 at [12]
[20] Short v FW Hercus Pty Ltd [1993] FCA 72; (1993) 40 FCR 511; (1993) 46 IR 128 at 134
[21] D’Sylva at [130]-[141] and the cases cited therein; Workplace Relations Amendment (Work Choices) Bill 2005, Explanatory Memorandum at [501]
[22] Re Shift Workers Case 1972 [1972] AR (NSW) 633; (1972) 14 AILR 700 at 659
[23] See, Industrial Relations Commission Decision 2617/1995 [1995] AIRC 2425 (M7325)
[24] PR988359; see decision on 2 September 2009 [[2009] AIRCFB 800]
[25] Request from the Minister for Employment and Workplace Relations [2008] AIRC 550 at [52]
[26] Section 228; see also Workplace Relations Amendment (Work Choices) Act 2005 s 92A
[27] 4 yearly review of modern awards – Plain language re-drafting – Clerks—Private Sector Award [2018] FWCFB 5553 at [156]-[160]
[28] Re Iron and Steel Works Employees (Australian Iron and Steel Ltd) Conciliation Committee [1941] AR (NSW) 445; John Fairfax & Sons Ltd v NSW Sales Representatives & Commercial Travellers’ Guild [1988] 25 IR 125 and Re Hospital Employees Conditions of Employment (State) Award 1976 AR 275
[29] Hospitality Conference Transcript, 12 February 2018, PN 132 – 152; See also, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (Cth) v Australian Postal Corporation [2012] FMCA 998
[30] See, City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [43] citing Australian Timber Workers Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172
[31] Clerks Award, clause 26.2
[32] Clerks Award, clause 30
[33] Clerks Award, clause 27
[34] Clerks Award, clause 26.2
[35] Clerks Award, clause 26.1
[36] Clerks Award, clause 28
[37] Clerks Award, clause 31.1
[38] Ibid
[39] Clerks Award, clause 25.1
[40] Clerks Award, clause 13.3
[41] See eg, Australian Workers’ Union v John Holland Pty Ltd [2010] FCA 1432
[42] 4 yearly review of modern awards—Plain language re-drafting—Hair and Beauty Industry Award 2010 [2022] FWCFB 117 at [191]-[199]
[43] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [53]
[44] See eg, Aged Care Award 2010 clause 28.2; Broadcasting, Recorded Entertainment and Cinemas Award 2020 at clause 18.2; Children’s Services Award 2010 Clause 24.2; Gas Industry Award 2020 Clause 20.1; Aluminium Industry Award 2020 clauses 2 and 22.1; Mining Industry Award 2020 clauses 2 and 22.1; Health Professionals and Support Services Award 2020 clause 27.2; Journalists Published Media Award 2020 clause 20.2; Legal Services Award 2020 clause 22.2; Local Government Industry Award 2020 clause 23.2; Meat Industry Award 2020 clause 25.1; Nurses Award 2020 clause 22.2
[45] Clerks Award, clause 4
[46] See eg, Clerks Award, clause 13.5
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