United Voice v Serco Group Pty Limited

[2013] FWC 9911

[2013] FWC 9911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Voice
v
Serco Group Pty Limited
(C2013/739)

COMMISSIONER BISSETT MELBOURNE, 23 DECEMBER 2013

Dispute concerning entitlements - Serco Immigration Services Agreement 2011.

[1] United Voice has made an application pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Commission to settle a dispute arising under the Serco Immigration Services Agreement 2011 (the 2011 Agreement). The dispute arises from some work undertaken by United Voice member and Serco Group Pty Ltd (Serco) employee Mr Ananda Karunathna.

Permission to be represented

[2] Prior to the hearing United Voice indicated that it would oppose permission for Serco to be represented by a lawyer in the arbitration of the matter.

[3] Serco submitted that it had already been granted permission to be represented in the conciliation of the dispute by Riordan C and that the permission given by the Commissioner at that stage was not restricted to conciliation proceedings only. As such it submitted that United Voice would need to argue that the permission already granted should be withdrawn.

[4] As its primary position however Serco argued that it has a right to be represented by virtue of the operation of clause 45 (grievance and dispute resolution procedure) of the 2011 Agreement.

[5] Clause 45(c) of the 2011 Agreement states that:

If such discussions do not resolve the matter, then discussions are to be held between the employee or employees concerned and more senior levels of management as appropriate. At and from this stage, a party to the dispute may appoint another person, organisation or association to accompany or represent then in relation to the dispute.

[emphasis added]

[6] United Voice submits that any right of Serco to be represented by a lawyer by virtue of the operation clause 45(c) ceases at the time the matter proceeds to arbitration. At this stage it says that Serco must be granted permission in accordance with the Act.

[7] At the commencement of the arbitration I indicated that it appeared on its face that Serco did have a right to be represented. I also indicated that, if I was wrong, I would grant Serco permission to be represented by a lawyer in the proceedings pursuant to s.596 of the Act on the grounds that it would not be fair to Serco to lose its representation when such representation had been granted at the time of conciliation. Permission was granted as required by the Act.¹

[8] I have now had an opportunity to further consider the matter of permission to be represented as set out in the Act and the extent of the right to be represented provided for by the 2011 Agreement.

[9] I should first of all say that the submission of United Voice that, even if this clause does provide a right to be represented, such a right ends at the commencement of arbitration is not borne out by the words of the clause.

[10] As to whether clause 45(c) gives Serco an unfettered right to be represented is a separate matter.

[11] In “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd 2(Silcar) the Full Bench of Fair Work Australia considered whether a dispute settling procedure provided a right to an appeal or if and how such a right might be limited by the operation of the Act. The Full Bench observed that:

[15] There was an issue between the parties as to whether the 2010 Agreement gives rise to an independent right of appeal (and therefore is not subject to leave or permission to appeal) or whether it merely provides for an appeal in accordance with the appeal processes in the FW Act such that permission to appeal is required.

[16] The dispute resolution procedure in the 2010 Agreement is in clause 10. Clause 10.1(h) of the 2010 Agreement provides:

“The decision of FWA will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench.”

[17] An enterprise agreement must contain a dispute resolution procedure that meets the requirements in s.186(6). Subject to meeting those requirements, the parties are free to make whatever provision they wish in relation to appeals against an arbitral determination of a dispute referred to Fair Work Australia or another independent person under the dispute resolution procedure in the agreement. In particular, the parties are free to agree on whether an appeal should be as of right or be subject to a requirement for leave or permission to appeal, the nature of any appeal provided for in the procedure and the powers that, as between the parties, may or may not be exercised by Fair Work Australia or the independent person in relation to such an appeal. Obviously, in the case of Fair Work Australia, any such conferral will be subject to any legislative constraints on the powers and functions that may be exercised by Fair Work Australia.

[18] Where an enterprise agreement makes provision for an appeal in circumstances where an appeal would not be available under the FW Act, such appeal should be seen as being an appeal under the dispute resolution procedure.

[12] After considering a range of authorities the Full Bench concluded that:

[27] Subject to the observations in paragraph [17] above, when a dispute resolution procedure in an enterprise agreement simply makes provision for an “appeal” this should generally be interpreted as an appeal in accordance with the appeal provisions in the FW Act. Such an appeal is an appeal by way of rehearing. Where, as here, the parties have conferred a “right” of appeal, this language suggests an intention that the appeal be as of right (that is, without the need for permission to appeal) but otherwise in accordance with the appeal processes in the FW Act. However, the question remains one of interpreting the agreement to ascertain the intention of the parties, objectively determined, and the use of the word “right” may not be determinative.

[28] We note that clause 10.1(h) of the 2010 Agreement is in almost identical terms to the relevant part of clause 5(11) of the agreement considered in University of Western Sydney. Consistent with that decision, we find that clause 10.1(h) creates an independent right of appeal for which permission to appeal is not required. We can see nothing in the language of the 2010 Agreement that leads to a different interpretation. The appeal otherwise proceeds in accordance with the appeal provisions in the FW Act.

[footnotes omitted]

[13] Further consideration has been given to the breadth of the right to appeal under a dispute settling procedures in light of the decision in Silcar. The decisions clearly distinguish between a disputes procedure which provides a ‘right’ to appeal in which case leave to appeal is not required 3 and those procedures where the disputes procedure provides that the decision at first instance ‘may’ be appealed, in which case it has been found that leave to appeal is necessary.4 That is, where a dispute settling procedure provides that a decision may be appealed it has been held that leave to appeal pursuant to the Act is required. This can be contrasted to procedures where a right to appeal has been held to then not require leave to be granted.

[14] Whilst the matter under consideration here is not about a right or otherwise to appeal, the decision in Silcar and subsequent decisions provide guidance as to how the language of the provision of the 2011 Agreement should be interpreted as to the right or otherwise of a party to be represented by a lawyer or paid agent.

[15] The 2011 Agreement states that a party may appoint someone or some organisation to represent them. Following the reasoning in Silcar, the use of the word ‘may’ does not suggest that the parties intended that the right of representation is an absolute right but rather one that is subordinate to the requirements of the Act.

[16] In this case it appears that the dispute settling procedure, in the words of the Full Bench in Silcar, simply makes provision for representation. This must be interpreted as representation in accordance with the Act. Had the parties conferred a ‘right’ to representation that would suggest that the representation would not be constrained by the requirement of the Commission to grant permission in accordance with the Act for such representation. That is the right to representation would circumscribe the need of the Commission to consider those matters is s.596 of the Act.

[17] Further, s.186 of the Act requires a dispute settling procedure in an Agreement must allow for the representation of an employee for the purposes of that procedure. An agreement cannot be approved by the Commission if this is not the case. If Serco is correct in what it has put then at a more general level permission would never need to be granted for a lawyer or paid agent to represent an employee in a matter under the disputes procedure before the Commission because the representation in the procedure would be absolute and could not be constrained by any other provision of the Act. On Serco’s submission the agreement would have conferred that right without constraint. If the agreement provision did not mention the employer having a right to representation this would automatically place the employer at a disadvantage in that it would have to be given permission to be represented in accordance with s.596 of the Act whereas the employee would not. There is nothing in s.596 or the Explanatory Memorandum to the Fair Work Bill to suggest that this was the intention of the Parliament.

[18] For these reasons I find that clause 45(c) of the dispute resolution procedure of the 2011 Agreement does not create a right of either party to be represented by a lawyer or paid agent independent of s.596 of the Act.

[19] Permission to be represented by a lawyer granted to Serco in accordance with s.596 of the Act therefore stands.

Jurisdiction and the matter for determination

[20] There is no disagreement that the Commission has power, under the grievance and dispute resolution procedure of the 2011 Agreement, to arbitrate the dispute between the parties. There is however an issue as to the breadth of the dispute raised by Mr Karunathna.

[21] Serco put in submissions that the limit of the dispute to be arbitrated is the issue raised by Mr Karunathna in his email to management on 30 March 2013 in which he first raised his grievance. In that email Mr Karunathna said:

Hi Purushoth

I have noticed that in my pay slip you have paid me 28hrs at normal rate of pay where as it should have been paid at OT rate as per the clause 25a of the certified EBA.

I have done this escort during my roster off days completing my normal roster hours of 84. Hence all excessive hours should be paid as OT

As you well aware that this issue was sorted out with the then management not so long ago on the intervention of union.

Your early action to the needful is much solicited.

Ananda

CSO 5

[22] Serco submits that the matter to be resolved is if Mr Karunathna is entitled to overtime for the 28 hours worked whilst on escort duty and while he was ‘off roster’: that is, working outside his normal roster. Serco said that it understood that United Voice is ‘seeking to raise a much broader question of the way in which hours accrue for the purposes of calculating overtime after employees have worked 84 hours and the like.’ 6 Serco submits that the dispute is not whether Mr Karunathna is being paid correctly at large but whether he has been paid correctly for the 28 hours identified in his email.

[23] I indicated in the hearing that the scope of the dispute was that matter raised by Mr Karunathna in the email (this being the point where he first raised the matter in dispute).

[24] It should not, however, be expected that an employee, in raising a dispute under an agreement, could specify the dispute with the level of legal exactitude that may be found in pleadings prepared by a suitably trained lawyer. It must be enough that an employee can reasonably identify the matter on which they disagree with the employer. An employee should not be expected, or be required, to identify all clauses to which the dispute relates at the first time they raise the dispute or to have the lack of initial detail unreasonably limit the extent of any final resolution of the dispute by arbitration.

[25] Further, in my view, it is reasonable that the detail of the dispute may be further refined. The purpose of discussion between an employee, his or her representative and the employer under the dispute resolution procedure surely is, in part, to better define the problem so that it might be resolved. To suggest otherwise would encourage employees, in raising the dispute with management, to identify the dispute as broadly as possible (e.g. “a problem under the agreement”) so as not to adversely affect a chance of resolution should the matter proceed to conciliation and/or arbitration. Some commonsense needs to be applied such that the dispute settling procedure can do the work as it is intended to do: to assist in the resolution of disputes in the workplace.

[26] It is clear from the wording of the email that there are a number of issues raised by Mr Karunathna. Firstly he raises the rate applicable for the 28 hours worked ‘off roster’ in accordance with clause 25(a) of the 2011 Agreement. Second, he raises the question of how this time is dealt with in conjunction with the completion of his normal 84 rostered hours. To this extent it seems to me that Mr Karunathna has, in his email, raised the issue of calculation of overtime following the completion of 84 rostered hours as well as the treatment of the 28 hours and whether or not those hours should be paid as overtime.

[27] For these reasons I find that the dispute relates to the payment of and accounting for time worked when that time is worked as part of a return from overseas escort duties without a client. The resolution of this matter will require a consideration of the proper application and interpretation of clause 19(k) - transport and escorts, clause 23(b) - hours of work and clause 25(a) - overtime. The dispute specifically relates to the wages due to Mr Karunathna for the fortnight commencing 11 March 2013.

[28] No issue was raised as to the jurisdiction of the Commission to deal with the matter beyond the limits of the dispute set out above. As is necessary I find that the matter is one arising under the 2011 Agreement and that is subject to arbitration under the provisions of clause 45 of the 2011 Agreement.

Background

[29] Mr Karunathna is a Client Service Officer (CSO) at the Maribyrnong Immigration Detention Centre (MIDC). From time to time he conducts international and domestic escorts of detainees from the centre either to their home country (international escort) or to another centre (domestic escort). In March 2013 he performed an international escort to Vietnam.

[30] Mr Karunathna’s pattern of work is 84 hours per fortnight consisting of seven shifts of 12.25 hours each in a pattern of 2 on, 3 off, 2 on, 2 off, 3 on, 2 off. He has always worked the same roster. 7

[31] In March 2013 he escorted a client to Vietnam. His work cycle for that fortnight was:

Monday 11 March 2013	Rostered On
Tuesday 12 March	Rostered On
Wednesday 13 March	Rostered Off - escort
Thursday 14 March	Rostered Off - escort
Friday 15 March	Rostered Off - escort
Saturday 16 March	Rostered On
Sunday 17 March	Rostered On
Monday 18 March	Rostered Off
Tuesday 19 March	Rostered Off
Wednesday 20 March	Rostered On
Thursday 21 March	Rostered On
Friday 22 March	Rostered On
Saturday 23 March	Rostered Off
Sunday 24 March	Rostered Off

[32] Allowances and other provisions relevant to escort work are set out in clause 19(i)-(k) of the 2011 Agreement:

19. Allowances

Transport and Escort

(i) ...

(j) ...

(k) When an employee is on International escort then normal rates of pay shall apply when escorting with a client, including overtime rates if applicable, but an employee will be paid ordinary time (without overtime) where the escort is returning without a client. This ordinary time worked will be used for the accrual of ordinary time within the roster.

Payment does not apply to periods of up to 10 hours duration in any 24 hours as a stand down time (ie overnight accommodation time) but does not include traveling (sic) time, time in transit, time waiting to travel or time otherwise worked on Serco duties. Where an employee’s roster permits and the employee elects to stay over for additional time (subject to company approval), this time will be unpaid and any additional costs will be borne by the employee.

[33] Clause 23 of the Agreement deals with hours of work:

23. Hours of work

...

(b) Full time employees. For client service employees, the ordinary hours of work per week will be an average of 42 hours a week or 504 hours in any 12 week period (settlement period)...

[34] Clause 25 deals with overtime:

25. Overtime

(a) All time worked by an employee in excess of 12 hours on anyone shift or hours outside an agreed pattern of work other than a shift swap or change, or returning from escort duty without a client, will be paid at the rate of time and one half for the first 2 hours and double time thereafter, paid at the relevant aggregate rate prescribed in clauses 16(a) or 18(a), Casual employees will be entitled to overtime for all hours worked in excess of 12 hours per shift and paid in accordance with sub clause 23(d)(i) hereof.

[35] Mr Karunathna was rostered off on the days he escorted a client to Vietnam. He was paid overtime for this. There is no dispute over this time or the payments made.

[36] Mr Karunathna however returned from Vietnam without a client (the escort return) on a day he was rostered off. The dispute relates to how this period of time should be paid and treated.

Construction of an agreement

[37] The resolution of the issue in dispute rests on a proper construction of the relevant clauses of the 2011 Agreement.

[38] The approach taken by the courts to the construction of industrial awards and contracts provides guidance as to the approach to be taken by the Commission in determining the construction of the terms of an industrial instrument.

[39] The relevant principles were summarised in Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd where Marshall, Tracey and Flick JJ found that:

Support for the position that the industrial context and the intention or purpose of the makers of an industrial instrument should be paramount notwithstanding the strict wording of the document is found in the judgments of members of the High Court in Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241.

In Amcor, Gleeson CJ and Mc Hugh J stressed at paragraph [2] that:

(t)he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation.

(Emphasis added.)

See also at paragraph [13], where their Honours referred to:

…the industrial purpose of the agreement, and the commercial and legislative context in which it applies.

Further, the purposive approach to the construction of industrial instruments was persuasively illustrated by Kirby J in Amcor at paragraph [96] where his Honour said:

The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

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.


(Original emphasis.)

See also per Gummow, Hayne and Heydon JJ at [30].

The approach of the High Court in Amcor is consistent with the modern approach to interpretation of commercial agreements where context and surrounding circumstances will be taken into account “even if the words at issue are not ambiguous, or susceptible of more than one meaning”; see Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1 at paragraph [46], per Weinberg J and see also at paragraph [251] where Lander J said:

It is now clear and settled law that the meaning of commercial contracts and documents is to be determined objectively. To determine the objective intention of the parties regard must be had, of course, to the words in the document themselves, but regard should also be had to all of the surrounding circumstances which were known to the contracting parties at the time the document was created including the underlying purpose and object of the commercial transaction: Pacific Carriers per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [22].

What is true of commercial contracts and their construction is also true of the construction of industrial agreements where regard must be had to the industrial context and the purpose of the provisions in question. In that regard, see also Short v FW Hercus Pty Ltd (1993) 40 FCR 511, especially at 518 to 520 per Burchett J, and City of Wanneroo v Holmes (1989) 30 IR 362 at 378 per French J. 8

[40] In Short v FW Hercus Pty Ltd 9 Burchett J, with whom Drummond J agreed, held that regard may be had to the history of a provision:

No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, 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. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: “The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.”

The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.

...Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. “Sometimes”, McHugh J. said in Saraswati v. R (1991) 172 CLR 1 at 21, the purpose of legislation “can be discerned only by reference to the history of the legislation and the state of the law when it was enacted”. Awards must be in the same position. 10

[41] It is well established that these principles, stated in relation to the interpretation of awards, are equally applicable to the interpretation of industrial agreements. They have application in the present case.

Contentions and evidence

[42] United Voice say that the provisions of clause 19(k) of the 2011 Agreement were altered from that in the Serco Immigration Detention Centres Agreement 2009 (the 2009 Agreement).

[43] The 2009 Agreement states:

When an employee is on escort overseas then normal rates of pay shall apply when escorting with a detainee, including overtime rates if applicable, but shall be paid ordinary time (without overtime) where the escort is returning without a detainee.

This time worked will not be used for the accrual of ordinary time within the roster...

(emphasis added)

[44] During negotiations the clause from the 2009 Agreement was changed so that it reads in the 2011 Agreement:

When an employee is on escort overseas then normal rates of pay shall apply when escorting with a detainee, including overtime rates if applicable, but shall be paid ordinary time (without overtime) where the escort is returning without a detainee. This ordinary time worked will be used for the accrual of ordinary time within the roster.

(emphasis added)

[45] During negotiations for the 2011 Agreement United Voice distributed material to its members which said that:

Time spent on return from a domestic escort without a client will no longer be paid at overtime rates if the officer goes into overtime and will be paid at ordinary rates. The trade-off is that all time spent on escort will count towards an officer’s ordinary time under the roster, so officers should go into overtime at the back end of their shift roster. 11

[46] Whilst this statement relates to domestic escort duties, the wording of domestic escort and international escort provisions in the 2011 Agreement are, in all relevant respects, the same.

[47] United Voice also relies on a Serco ‘notice to staff’ dated 6 December 2011. 12 The circular is from Tony Hassell, Chief Operating Officer of Serco. That circular states:

I am pleased to advise that the 2011 negotiations for a new EBA have resulted in a proposal now ready to be put to employees for information and ultimately to vote on...

The voting will take place from 14-20 December 2011 inclusive...

In the meantime, I take the opportunity to provide all employees with a summary of proposed changes for your information. That summary is attached.

[48] Attached to the staff notice is a document titled ‘Proposed EBA - Serco Immigration Services Agreement 2011 information for employees - summary of major changes’. Under a heading ‘International Escorts (Clause 19 Allowances)’ it says:

Employees returning from international escorts without a client to be paid ordinary time, and that time will count towards ordinary time hours in the roster (currently do not count towards rostered hours).

(emphasis added)

[49] The evidence of Mr Karunathna and Mr Peter Barnsley, a United Voice delegate, is that they each saw this notice on the notice board at work. This evidence was not contested.

[50] Mr Neal Swancott, a National Industrial Adviser for United Voice, gave evidence that, as a result of negotiations for the 2011 Agreement there was a change made to the overseas escort provisions of the agreement that aligned domestic and overseas escort provisions and made clear the ordinary hours worked would count towards the accrual of time within the roster. Mr Swancott was directly involved in those negotiations.

[51] Mr Swancott also gave evidence that the final wording of the 2011 Agreement was informed by recommendations made by Harrison SDP in conciliation for the purposes of the 2011 Agreement although whether her Honour made any recommendations relevant to this matter is contested in the evidence of William Dawson, the Director Industrial Relations for Serco.

[52] Mr Dawson also disputes evidence of Mr Barnsley that it was agreed between Serco and United Voice in negotiations for the 2011 Agreement that an employee returning from escort without a client ‘who worked more than 84 hours in the fortnight would be paid at overtime rates for hours worked beyond 84.’ 13

[53] To the extent it is relevant to my consideration of the 2011 Agreement I have given no weight to the evidence of what may or may not have occurred in conciliation for the agreement.

[54] Serco submits that, under clause 19(k) of the 2011 Agreement normal rates of pay apply to international escorts. In the specific circumstances of this case it says that Mr Karunathna was paid his ‘normal rate of pay’ (which was overtime because he was working outside the agreed pattern of hours) on the escort whilst with a client. The provision of clause 19(k) that ‘an employee will be paid ordinary time (without overtime) where the escort is returning without a client’ operates to qualify the ‘normal pay’ that may otherwise apply. Serco submits that such a construction of clause 19(k) is consistent with clause 25 of the 2011 Agreement.

[55] Serco further submits that the words ‘[t]his ordinary time worked will be used for the accrual of ordinary time within the roster’ is a reference to time on the escort performed in ordinary time. To this extent Serco submits that the time Mr Karunathna spent on the escort was outside his agreed pattern of hours and hence was not in ordinary time and does not go to the accrual of ordinary hours. The return leg was not paid at overtime rates because of the provisions of clause 19(k) and clause 25 which limits the payment for such work.

Consideration

[56] It was not a matter in contention that employees working a normal roster receive overtime if they work more than 12 hours in a day and overtime once they work 84 ordinary hours in the 2 week roster cycle.

[57] In order to properly determine the construction of the 2011 Agreement, and hence the payments otherwise due to Mr Karunathna, it is necessary to first consider how time worked is accounted for.

[58] Clause 25 is the only clause in the 2011 Agreement that deals substantially with the overtime rate of pay. Its structure is not unusual from that found in agreements more generally in that it stipulates when overtime is payable and the rate at which such time worked is to be paid.

[59] Clause 25 is clear in that, in most circumstances, time worked in excess of 12 hours or outside the agreed pattern of work is paid at time and one half for the first two hours and double time thereafter.

[60] The exception is time worked on a shift swap or when returning from escort without a client which is not paid at the penalty rates described. No further information is given in clause 25 as to how such hours are to be treated or paid. This is to be determined, it would appear, by reference to other clauses in the 2011 Agreement.

[61] Shift swap arrangements are dealt with in clause 23(g) of the 2011 Agreement. This clause provides that a shift swap does not result in any adjustment in the roster, the hours of each employee in the swap must balance within the settlement period of the swap or the next, and that no overtime is to be paid as a direct result of the shift swap. That is, hours worked as a result of shift swap are not overtime hours, even if an employee works more than 84 hours in the roster period as a result of the swap. Rather, the hours are treated as ordinary hours and paid as such.

[62] Hours worked on escort are, generally, no different to any other hours. Hours worked are either part of the agreed pattern of hours – that is the rostered hours (instead of reporting for duty at MIDC for the next three rostered shifts an employee will be on international escort duties) or it is time worked outside the roster (on the next three rostered days off the employee will be on international escort duties). The payment for such hours is covered by clause 23 in conjunction with clause 25(a).

[63] Escort return hours are, however, singled out for special mention and treatment in clause 19(k).

[64] Clause 19(k) is not a well drafted clause. Despite this, all parts of the clause must have some work to do.

[65] In Commonwealth v Baume it was held that ‘no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.’ 14 Whilst this statement was made in the context of statutory interpretation there is no reason it should not hold with respect to a consideration of the meaning of words contained in an agreement. Nothing was put to me to suggest I should not give meaning and effect to all words in the clause.

[66] Ordinary time worked on the roster counts to the accrual of 84 hours in the fortnight. This is so regardless of whether the time is worked on escort with a client, on return escort without a client or on ordinary duties. It is time rostered on. The last sentence of clause 19(k), which states ‘This ordinary time worked will be used for the accrual of ordinary time within the roster’, is not necessary to confirm this. I must therefore reject the argument of Serco that the final sentence in the paragraph is only a reference to time worked on the roster performed during rostered hours.

[67] The final sentence in clause 19(k) refers to this ordinary time worked. The only other reference to ordinary time in the clause is the ordinary time worked on escort return without a client. This ordinary time worked must therefore be a reference to that ordinary time (without overtime) worked on return escort work. There is nothing else in the clause that it needs or can logically refer to.

[68] This strongly suggests that time on escort return is ordinary time and that it does count to the accrual of ordinary hours.

[69] Such an interpretation of the clause is contextually consistent with the change in wording from the 2009 to the 2011 Agreements. It is also, importantly, consistent with the representations made by Serco to its employees at the time they were asked to approve the 2011 Agreement. Such an interpretation also gives all of clause 19(k) work to do.

[70] Such an interpretation of the clause is not at odds with the operation of clause 25(a). Clause 25(a) provides that all time worked outside normal rostered hours – except for shift swaps and escort return – is paid at the overtime rate of pay. When clause 19(k) is given the meaning I have found, the phrase ‘other than a shift swap or returning from escort duty without a client’ is clear that such time is not considered as overtime and is therefore not subject to overtime rates of pay.

[71] That shift swap and escort return duties are in the same phrase in clause 25(a) supports the proposition that they should be treated in the same manner, that is the hours are not overtime (even at some reduced penalty rate).

[72] Such an interpretation of clause 19(k) still leaves the words that an ‘employee will be paid ordinary time (without overtime) on return escort without a client’ with work to do in relation to an employee returning from an international escort where some of the work is performed within the normal roster. Such an employee would be paid ordinary time for the time within the roster but not overtime for the time worked outside the roster. Rather such time is added to the accrual of hours of the fortnight.

[73] I therefore find that the proper application and interpretation of clause 19(k), 23(b) and 25(a) requires that time worked on client escort duties should be settled as follows:

● Where a client is being escorted:

• Time worked within the normal roster is to be paid at the ordinary rate of pay;



• Time worked beyond 12 hours per day or outside the normal roster is paid at the overtime rates in clause 25(a).

● When there is no client escort on return:

• Time worked within the normal roster will be paid at ordinary time;



• Time worked outside the normal roster will be paid at ordinary time with no overtime rate, regardless of how many hours are worked. Such time is counted towards the accrual of ordinary hours for the roster period.

Disposition of the dispute

[74] In terms of the specific dispute raised by Mr Karunathna in his email and subject to this decision, the hours worked by Mr Karunathna for the fortnight commencing 11 March 2013 and the payments received for that fortnight need to be reassessed in light of my findings as to the proper application and interpretation of the relevant clause of the 2011 Agreement. An order requiring an assessment of the hours worked and appropriate adjustment to the payments made to Mr Karunathna for the period in question in accordance with this decision shall be issued with this decision.

[75] I would expect that Serco will make any adjustments to the payments received by Mr Karunathna for the fortnight in accordance with the order.

[76] I leave it to the parties to undertake this work. Should the parties not be able to agree the matter can be relisted.

COMMISSIONER

Appearances:

I. Patin and P. Sutton for the Applicant.

J. Fernan for the Respondent.

Hearing details:

2013.

Melbourne;

18 November.

1 See Warrell v Fair Work Australian [2013] FCA 291.

 2   [2011] FWAFB 2555.

 3   See Mr Jeffrey Lamb v Bunnings Group Limited[2013] FWCFB 2698; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Thales Australia Limited[2011] FWAFB 8246; and Presbyterian Care Tasmania Incorporated [2013] FWCFB 8166.

 4   See Construction, Forestry, Mining and Energy Union & Anor v SCA Hygiene Australasia Pty Limited[2012] FWAFB 9505; and United Firefighters’ Union of Australia v Country Fire Authority[2013] FWCFB 8165

 5   Exhibit UV1, attachment AK3.

 6   Transcript PN134.

 7   Exhibit UV1, paragraphs 5-6.

 8 [2011] FCAFC 67, [14]-[18].

 9 (1993) 40 FCR 511.

 10 (1993) 40 FCR 511, 517-518.

 11   Exhibit UV5, attachment D.

 12   Exhibit UV4, attachment PB2.

 13   Exhibit S1, paragraph 18.

 14 (1905) 2 CLR 405, 414.

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