United Firefighters' Union of Australia v Fire Rescue Victoria

[2025] FWC 270

[2025] FWC 270

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.739—Dispute resolution

United Firefighters’ Union of Australia
v

Fire Rescue Victoria

(C2024/7691)

DEPUTY PRESIDENT COLMAN MELBOURNE, 30 JANUARY 2025

Dispute arising under enterprise agreement – expression of views

1. The United Firefighters’ Union of Australia (UFU) has filed an application under s 739 of the Fair Work Act 2009 (Act) and the dispute resolution procedure in the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (Agreement) in relation to a dispute between the UFU and Fire Rescue Victoria (FRV). The dispute concerns the meaning of clause 128 of ‘Division A’ of the Agreement, which concerns overtime, and its application to two employees, Station Officer Lobb and Senior Station Officer Pratt. FRV operates a ‘10/14’ roster. In each cycle, employees are rostered to work two 10-hour day shifts, two 14-hour night shifts, and then have 4 days off. In July 2024, Mr Lobb and Mr Pratt were recalled to work a shift that was in excess of their rostered shifts and were paid overtime. They were both retained to work beyond the end of the shift: Mr Lobb worked an entire day shift, and then continued to work for a further 2 hours; Mr Pratt worked an entire night shift, and then continued to work for a further 3 hours and ten minutes.

1. The UFU contends that Mr Lobb and Mr Pratt are entitled to 4 hours of pay in respect of the period for which they worked beyond the end of the shift. Clause 128.5 of the Agreement provides that ‘an employee on shift work who is retained on duty at the conclusion of a rostered shift … shall be paid a minimum of four hours at double time.’ The UFU contends that this clause was engaged, and that both employees are entitled to 4 hours’ pay at double time in respect of the work they performed beyond the end of the recall shifts. The UFU submits that FRV contravened clause 128.5 because it paid the two employees at double time only for the time they actually worked. It contends that FRV must make an additional payment to reflect the minimum 4-hour rule.

1. FRV contends that clause 128.5 was not engaged because the two employees were not retained on duty at the conclusion of a ‘rostered shift’. Rather, they worked beyond the end of an overtime shift that was not part of their roster. While these shifts were part of the 10/14 roster, and were rostered shifts for other employees, they were not ‘rostered shifts’ for Mr Lobb and Mr Pratt.

1. The parties asked the Commission to express a view as to which interpretation of clause 128.5 is correct, and I agreed to do so. I asked the parties to submit a summary of their arguments to the Commission. I advised that I would schedule a further conference at which the parties could speak briefly to their summaries, and that I would then express my view.

1. Clause 128 of the Agreement reads as follows:

128. OVERTIME

128.1. All time worked by an employee in excess of the day’s rostered shift or for more than four shifts in any seven consecutive days shall be paid for at the rate of double time per hour, calculated to the nearest quarter of an hour.

128.2. An employee recalled to work overtime shall be paid for a minimum of four hours’ work at the rate of double time per hour. They shall not be required to work the full four hours if the job they were recalled to perform is completed within a shorter period.

128.3. At the election of the employee, time off equivalent to the period of overtime worked may be taken in lieu of receiving double rates, provided that if the time off has not been taken, an employee may later elect that the penalty rate for the overtime will be paid.

128.4. An employee recalled to work overtime shall be paid travelling time, at ordinary rates, except on Sundays and public holidays when time and one half apply. In addition a payment of $1.31 per kilometre or part thereof, shall be made in respect of the distance travelled from home to work and return.

128.5. An employee on shift work who is retained on duty, at the conclusion of a rostered shift for 60 minutes or more shall be paid a minimum of four hours at double time, provided that if the work to be done is completed within four hours, the employee need not stay for the full four hours.

128.6. An employee retained on duty after a night shift, shall be entitled to eight consecutive hours off duty, without loss of pay for ordinary working time.

128.7. All recall or retention provisions apply regardless of whether or not any notice is provided for the overtime.

1. At the conclusion of today’s conference I advised the parties that in my view, the interpretation of FRV is to be preferred.

1. There is no definition in the Agreement of a ‘rostered shift’. The ordinary meaning of a rostered shift is simply a shift that is rostered. It is true, as the UFU says, that clause 128.5 does not speak of employees being retained at the conclusion of their rostered shift. The overtime shifts that the 2 employees worked were ‘rostered shifts’, in the sense that they were part of the continuous 10/14 roster on which all operational employees work.

1. However, the meaning of ‘rostered shift’ in clause 128.5 must be understood in the context of clause 128 of the Agreement. Clause 128.1 states that all time worked ‘in excess of the day’s rostered shift …’ is overtime. The reference to ‘rostered shift’ here must be a reference to the rostered shift of the particular employee, because the purpose of the clause is to define when overtime is payable. Overtime could not logically apply to time worked by an employee in excess of anyone’s rostered shift. The use of the language ‘the day’s rostered shift’ is somewhat archaic, but the intention is clear: overtime is payable for work in excess of the employee’s rostered shift. In my view, when this same expression appears in clause 128.5, it carries the same meaning. It refers to the relevant employee’s rostered shift. When an employee works a recall shift, which is an overtime shift for that employee, this is not a rostered shift for the purposes of clause 128.5. It is work that is in excess of the employee’s rostered shift’.

1. This interpretation is consistent with the text and context of clause 128. It reflects what are common, sensible industrial arrangements in relation to overtime. Employees receive overtime payments at double time for work in excess of their rostered shifts, to the nearest quarter of an hour (clause 128.1). When they are recalled to work overtime, they are entitled to a minimum 4-hour payment (clause 128.2). When they are retained on duty at the end of their own rostered shift, they receive a minimum 4-hour payment (clause 128.5). Recall provisions commonly specify a minimum engagement or payment period to make sure that recall is worth the worker’s while. Clauses providing for a minimum payment for work done beyond a shift’s end have a similar purpose. But one would not expect a recalled employee who is working overtime to be entitled both to a minimum recall period and to a minimum extension period in respect of that recall. Yet this would be the effect of the UFU’s interpretation.

1. I appreciate that in practical terms, the UFU’s interpretation would not mean that an employee could receive the benefit of two minimum 4-hour payments, because if the minimum 4-hour engagement is invoked, it will be because the employee worked for less than 4 hours. Such an employee will not be retained at the end of the shift. Nevertheless, employees who have been recalled to work are receiving overtime rates. They are already being compensated for work that is outside their usual working time. It would be unusual for them to be compensated in two different ways.

1. There is no reason why the parties to the Agreement could not have provided for a provision that operates in the manner contended for by the UFU. But in my view that is not what clause 128 does. The reference in clause 128.1 to overtime being payable for work in excess of a rostered shift gives a clear meaning to that expression, which in my view is also applicable to clause 128.5. It means the employee’s usual rostered shift. In my view, clause 128.5 does not apply to employees who are retained on duty at the conclusion of an overtime shift.

DEPUTY PRESIDENT
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