United Voice v Quality Bakers Australia Pty Ltd

[2016] FWC 315

[2016] FWC 315

DECISION

Fair Work Act 2009

s.739—Dispute resolution

United Voice

v

Quality Bakers Australia Pty Ltd T/A Goodman Fielder Fresh Baking

(C2015/4774)

COMMISSIONER WILLIAMS	PERTH, 18 JANUARY 2016
s.739 - dispute resolution.

[1]        This decision concerns an application brought by United Voice (the applicant) on

behalf of its members under clause 10−Dispute Resolution of the Goodman Fielder Baking

(Western Australia) Enterprise Agreement 2014-2017 [AE413944] (the Agreement).

Background

[2]        The respondent manufactures and distributes bread and other baked goods at its

Malaga site in Western Australia. The respondent has approximately 130 employees of which

approximately 60 employees are employed on the bread and baked goods production lines.

There are four different production lines at the site; the bread line, rolls line, crumpets line

and muffins line.

[3]        On 2 August 2015, the respondent ceased paying a 27.88% shift loading (Loading) to

employees on the rolls, crumpets and muffins lines (RCM lines).

[4]        The applicant disputes the removal of this shift loading which has been paid for some

extended period. The respondent argues that the Loading should not have been paid to the

employees on the RCM lines as they are not entitled to it under the terms of the Agreement.

[5]        The question for determination in this proceeding is:

“Can the respondent stop paying the shift loading to the employees on the RCM lines

under the Goodman Fielder Baking (Western Australia) Enterprise Agreement 2014-

2017?”

[6]        Clause 10−Dispute Resolution of the Agreement provides that a dispute about a matter

under this Agreement may, having first been progressed through discussions within the

business, be referred to the Commission for arbitration if necessary. I am satisfied in the

circumstances that the Commission does have jurisdiction to arbitrate this dispute.
[2016] FWC 315
Relevant provisions of the Agreement

[7]        Specific provisions for different parts of the respondent’s operations are prescribed in

a number of schedules attached to the Agreement.

[8]        Schedule 2–Baking, includes provisions specifically for the:

“Rolls, Crumpets and Muffins Line”

[9]        These relevantly include:

“Rostered Hours of Work

10AM Sunday to midnight Friday

Employees may be rostered to work between 5AM and 10AM Sunday with the

agreement of the majority of employees concerned. Where the company utilises a

rotating shift structure, it may be made up of either 4 day or 5 day rosters.

Shift loadings – loaded on top of ordinary rate

Time plus 27.88% for all ordinary hours worked on a rotating shift basis between

10AM Sunday and midnight Friday.”

[10]      Schedule 3−Engineers includes Tables A and B which prescribes “Rates for Engineers

Working Rotating Shifts…” employed respectively either prior to 1 December 2014 or after 1

December 2014. Immediately beneath Table B the Schedule reads as follows:

“Employees employed under Table A and Table B will work rotating shifts structured as

follows:

- 12 hour shifts;

- 4 days on shift and then 4 days off shift; and

- The 4 days on shift will rotate between day and night work.”

Relevant evidence

[11]      There are different production lines at the Malaga site these are the bread line, the rolls

line, the crumpets line and the muffins line. The majority of baking employees, approximately

75%, are employed on the bread line.

[12]      Currently there are 9 employees working on the RCM lines.

[13]      The respondent accepts that the employees who work on the bread line work a rotating

shift. These employees currently rotate between a week of four night shifts, a week of four

day shifts and a week of two day shifts and two night shifts. Each of these shifts is 10 hours in

duration.

[2016] FWC 315

[14]      Separately the maintenance engineers at the site also work a rotating shift of four days

on, four days off on a 24-7 basis. These engineers work two day shifts and two night shifts

and each shift is of 12 hours in duration. These working hours are provided for in Schedule

3−Engineers of the Agreement.

[15]      On 23 June 2015 affected employees were notified that following a review RCM line

employees were no longer eligible for the Loading.

[16]      An example of the rostered hours of work for two employees Mr Matt Wyatt and Mr

Michael Jones who work on the RCM lines is as follows:

Sunday	Monday	Tuesday	Wednesday	Thursday	Friday
Wyatt	9am-7pm	6am-4pm	6am-4pm	6am-4pm	11am-3pm
Jones	10am- 8pm	7am-5pm	7am-5pm	7am-5pm	11am-3pm

[17]      The RCM line employees work regular hours and set shifts.

[18]      The evidence of Mr Edwards and Mr Jones who work on the RCM lines is that the

bakers working on the RCM lines work in the positions of mixer, or divider operator or on

ovens and trays. The bakers are required to know all of these positions and work in any

position that needs to be filled; which of these positions a baker works in is dependent upon

the week, particular shift or due to particular operational requirements. The RCM lines runs

rolling breaks which mean that during a shift when a baker is on a break another baker who is

performing another duty can be moved to fill that employee’s position. The changing from

one position to another is to accommodate the needs of the business on that particular shift to

produce the particular goods required.

[19]      The evidence is that the RCM line employees do not rotate between day and night

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shifts.

Submissions

The applicant

[20]      The Full Bench of the Commission in the decision of The Australasian Meat Industry

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Employees Union v Golden Cockerel (Golden Cockerel) summarised the principles to apply

when determining the meaning of agreements.

[21]      The Loading central to this dispute is contained within Schedule 2, clause 4 of the

Agreement. Clause 4 sets out a table of specific conditions for RCM line employees. It

includes:

“Shift loadings —loaded on top of ordinary rate

Time p1us 27.88% for all ordinary hours worked on a rotating shift basis between

10am Sunday and midnight Friday.”

[2016] FWC 315

[22]      There is no definition of ‘rotating shift’ or ‘rotating shift basis’ in the Agreement.

[23]      The Macquarie Dictionary defines ‘rotate’ as follows:

“1. To cause to turn round like a wheel on its axis.

2.          To cause to go through a round of changes; cause to pass or follow in a fixed

routine of succession; to rotate crops,

3.          To turn round on axis.

4.          To proceed in a fixed routine of succession.” (Underlining added)

[24]      The current rostered shifts do go through a round of changes.

[25]      There are changes to start and finish times and to shift lengths.

[26]      RCM line employees change their start and finish times for different shifts throughout

the roster. The rotation of different shifts throughout the roster cycle continues in each roster

cycle.

[27]      The applicant submits there are also changes to positions as follows:

a. RCM line employees change positions based on the week, particular shift or

due to operational requirements.

b. RCM line employees are assigned a position of Mixer, Divider Operator,

Ovens, Trays, or Cleaning/Relief.

c. Throughout each roster cycle RCM line employees rotate through the

positions. Employees are required to be able to perform each position and each

position is essential to production. For example, an employee may be rostered

to perform the position of Mixer for a roster cycle or shift, then they will rotate

to other positions.

[28]      The changes to start/finish times, length of shifts and/or positions reflect a process of

going through a round of changes. It is submitted that by adopting a plain and ordinary

construction these changes amount to a ‘rotating shift basis’ and the RCM line employees are

therefore entitled to the Loading.

[29]      The applicant argues the respondent cannot cease paying the Loading to RCM line

employees.

[30]      On a plain construction the work of the RCM line employees amounts to work on a

‘rotating shift basis’.

[31]      History demonstrates the Loading has been paid on all ordinary hours since 1993 to

RCM line employees. This expectation continued through the many rounds of bargaining

since the Loading’s inception and various changes to rostering arrangements.

[2016] FWC 315

[32]      In the alternative, there is ambiguity in the language ‘rotating shift basis’. Given this,

the history of the clause, the industrial context, the intention of the parties and the practice

supports an interpretation that the Loading is not dependent on a particular shift pattern and

cannot be unilaterally removed by the respondent.

[33]      The applicant provided detailed evidence and submissions as to the history of the

Loading in prior agreements and awards.

The respondent

[34]      The respondent submits clause 4 of Schedule 2 of the Agreement sets out the rostered

hours of work and loading payable for baking employees who work on the RCM lines and

provides for a shift loading on top of the ordinary rates which is “time plus 27.88% for all

ordinary hours worked on a rotating shift basis between 10am Sunday and midnight Friday”.

The wording of the clause is clear and unambiguous and only entitles employees to the

27.88% loading if they work hours on a rotating shift basis.

[35]      The employees on the RCM lines have not worked a rotating shift since the

commencement of the Agreement’s operation on 22 May 2015. However, in error the

respondent has been paying the employees on the RCM lines the rotating shift loading under

clause 4 of Schedule 2 of the Agreement.

[36]      On 2 August 2015, the respondent ceased paying the employees on the RCM lines the

rotating shift loading. The change was introduced as a result of the recently implemented new

shift roster for those employees at the Malaga site.

[37]      The respondent submits that it is entitled to stop paying the employees on the RCM

lines the rotating shift loading under the Agreement if they do not work a rotating shift.

[38]      The respondent submits that, for the reasons set out below, the Commission should

answer the question for determination as Yes.

[39]      The wording of the clause 4 of Schedule 2 of the Agreement is clear and unambiguous

and provides that the Loading is only payable on hours that employees work on a rotating

shift basis.

[40]      There is no definition of rotating shift in the Agreement however the ordinary meaning

of rotating shift basis is clear and unambiguous, it means a series of alternating shifts that

have sequential start times, such as a day shift, afternoon shift and night shift, or day and

night shift, that usually occur in a sequence over a 24 hour period and employees are required

to work a combination of these shifts.

[41]      The respondent submits that the Commission should not rely on a dictionary meaning

of the term ‘rotate’ or ‘rotation’ to impute a meaning onto the term ‘rotating shift basis’ which

is unworkable and nonsensical.

[42]      The respondent relies on Mr Orr-Young’s evidence that the employees on the RCM

lines do not work a rotating shift as they do not rotate between a day and night shift or a day,

afternoon and night shift. The employees on the RCM lines have a set shift during which they

largely work ordinary day hours on set days. The employees always start work in the morning
[2016] FWC 315

and finish in the early evening. The evidence of the applicant supports this evidence of Mr

Orr-Young.

[43]      The respondent relies on the evidence of Mr Orr-Young that while the employees on

the RCM lines do slightly change their start times and are required to undertake various duties

during their shifts, this does not constitute a ‘rotating shift’. The respondent relies on Mr Orr-

Young and Ms de Fluiter’s evidence that the employees on the bread line, in contrast, do work

a rotating shift and rotate between day and night shifts.

[44]      Therefore the RCM line employees should not be paid a 27.88% loading under clause

4 of Schedule 2 of the Agreement.

[45]      If the Commission determines that the meaning of rotating shift basis is not clear and

unambiguous then it should have regard to the commonly understood meaning of rotating

shift basis in the food manufacturing industry and in its practical context, not to an unpractical

dictionary meaning. The Commission should have regard to the actual rotating shifts worked

by employees on the bread line at the Malaga site for which those employees are paid a

rotating shift allowance.

[46]      The respondent submits that the Commission should not accept the evidence the

applicant puts forward of the surrounding circumstances as an objective framework of fact.

Instead, the Commission should favour the evidence of Mr Orr-Young in relation to the

surrounding circumstances of the Agreement negotiations.

[47]      There is a clear business reason why an employee receives a loading if they are

working a rotating shift; because the operation gets the benefit of employees working a day,

afternoon and nightshift or dayshift and nightshift.

[48]      The respondent had erroneously been paying the employees on the RCM lines the

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27.88% loading under clause 4 of Schedule 2 of the Agreement and the previous agreement

despite them not working a rotating shift basis. This resulted in a windfall for these employees

at the respondent’s expense;

[49]      This error by the respondent should not be further compounded by the Commission’s

determination of this dispute.

Consideration

[50]      The parties have both rightly referred to the Golden Cockerel Full Bench decision,

which recently summarised the principles the Commission is to apply when considering the

construction of an agreement.

[51]      It is first necessary to determine whether the words ‘rotating shift basis’ as they are

used in Schedule 2 of the Agreement have a plain meaning or whether these words are

ambiguous.

[52]      Whilst the applicant and the respondent argue for different meanings they both submit

in the first instance that the words do have a plain meaning and there is no ambiguity. The fact

that the parties promote different meanings does not of itself determine that there is an

ambiguity or that the words are susceptible to more than one meaning.

[2016] FWC 315

[53]      The applicant relies upon The Macquarie Dictionary definition of ‘rotate’ below:

“1. To cause to turn round like a wheel on its axis.

2.          To cause to go through a round of changes; cause to pass or follow in a fixed

routine of succession; to rotate crops.

3.          To turn round on axis.

4.          To proceed in a fixed routine of succession.”

[54]      The applicant in its submissions however relies upon only one part of that definition,

in particular “2. To cause to go through a round of changes;” and then points to the fact that

day to day there are changes in start and finish times, shift lengths and in the positions

individuals work in on the RCM lines as supporting their conclusion that the working

arrangements for the RCM lines is a rotating shift.

[55]      Considering this firstly the expression ‘rotating shifts’ indicates that it is the shifts that

are rotating, it is the shifts that go through a round of changes. Consequently the fact the

employees move from one position to another whilst working a shift or work in a different

position from one shift to the next does not demonstrate that the shift is going through a round

of changes.

[56]      It seems to me the element of the definition on which the applicant relies also supports

the respondent’s argument that the plain meaning of working on a ‘rotating shift basis’ means

there is a succession of shifts that have sequential start times, such as dayshift, afternoon shift

and nightshift or alternatively day and nightshift. It seems to me the respondent’s construction

of these words ‘rotating shift basis’ is also consistent with other elements of that definition

including to “…cause to pass or follow in a fixed routine of succession;” as well as “4. To

proceed in a fixed routine of succession”.

[57]      In my view the plain meaning of working on a ‘rotating shift basis’ is working on the

basis of a sequence of shifts being a mix of day, afternoon or night shifts and days off or

perhaps a mix of day and night shifts and days off. In this way the shift an employee works

goes through a round of changes, for example, from day shifts to afternoon shifts to night

shifts and this proceeds in some fixed routine of succession.

[58]      Whilst there does not appear to have been a decision which directly defines these

words a review of any number of decisions of the Commission over the years demonstrates

that this plain meaning of the words ‘rotating shifts’ I have explained above has been

notoriously understood both by parties appearing before the Commission, whether applicant

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or respondent as well as by various Members of the Commission.

[59]      This construction of the Agreement is also consistent with the text of the Agreement

viewed as a whole and particularly Schedule 3−Engineers which gives example of rotating

shifts that mechanical and electrical engineers may work in the following terms:

“Employees employed under Table A and Table B will work rotating shifts structured as

follows:

[2016] FWC 315

- 12 hour shifts;

- 4 days on shift and then 4 days off shift; and

- The 4 days on shift will rotate between day and night work.”

[60]      My conclusion is that the hours worked by the RCM line employees are not hours

worked on a rotating shift basis. Consequently the shift loading in Schedule 2–Baking of

27.88% does not apply to the current hours and rosters worked by employees on the RCM

lines.

[61]      The answer to the question “Can the respondent stop paying the shift loading to the

employees on the RCM lines under the Goodman Fielder Baking (Western Australia)

Enterprise Agreement 2014-2017?” is Yes.

COMMISSIONER

Appearances:

S Dane on behalf of the applicant.

K Korbel on behalf of the respondent.

Hearing details:

2015.

Perth:

September 18.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR576165>

1

Exhibit R1, at paragraph 20.

2

[2014] FWCFB 7447.

3

AE889357.

4

For example, PR914993 at [6], [7] and [8] and [2015] FWCFB 62 at [9], [24], [33].