United Voice v Wilson Security Pty Ltd T/A Wilson Security

[2017] FWC 1802

[2017] FWC 1802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Voice
v
Wilson Security Pty Ltd T/A Wilson Security
(C2016/5609)

COMMISSIONER GREGORY MELBOURNE, 29 MARCH 2017

Alleged dispute regarding payment of applicable shift work allowances.

Introduction

[1] This dispute arises from a decision by Wilson Security Pty Ltd T/A Wilson Security (“Wilson Security”) to change the arrangements regarding payment of a shift work allowance in circumstances where the employees are working shifts that finish after 6.30 p.m. Wilson Security initially foreshadowed this change in May of last year, although its implementation is currently on hold pending resolution of the dispute. The employees involved are located at the offices of the Department of Treasury and Finance in the Melbourne CBD.

[2] Wilson Security informed United Voice Victoria (“United Voice”) that the employees, who regularly work shifts in a roster cycle that commences at 7 a.m. and concludes at 7 p.m., are no longer considered to be afternoon shift workers because their ordinary time hours finish prior to 6.30 p.m. This occurs because the hours in each 12 hour shift are treated as follows:

• 10.86 ordinary time hours,



• 1.14 overtime hours.

[3] As indicated, Wilson Security submits the employees are no longer entitled to the 20% shift loading because their ordinary time hours conclude prior to 6.30 p.m. However, the final 1 hour and 14 minutes in each shift is treated as overtime and paid at the rate of time and a half. The overall impact of this change is a reduction in earnings for the employees as they will no longer receive the 20% afternoon shift penalty for all ordinary time hours worked.

[4] United Voice claims the changes are contrary to the intent of clause 20 of the Agreement that covers the parties. That Agreement is the United Voice and Wilson Security Safeguard Agreement 2014 (“the Agreement”). 1

[5] The dispute was dealt with in conference on 24 October 2016, but was not resolved. United Voice subsequently requested the matter be dealt with by way of arbitration and directions were issued for filing and service of submissions and evidence. The matter was heard on 20 December 2016. Mr Alex Sands appeared on behalf of United Voice. Mr Tass Angelopoulos from National Workplace Lawyers was given permission to appear on behalf of Wilson Security under s.596(2)(a) as the matter involves a degree of complexity and his involvement might enable it to be dealt with more efficiently.

The Submissions and Evidence

[6] United Voice provided a written submission and two witness statements in support of its application. It detailed how the proposed changes were communicated to the employees, who are located at the offices of the Department of Treasury and Finance in the Melbourne CBD. It submits they were first informed in May last year that Wilson Security was proposing changes to the way in which their working hours are treated, and were told that shifts extending beyond 6.30 p.m. were no longer entitled to receive the 20% afternoon shift allowance, which had previously been applied to the entire shift. This was because the last hour worked in each 12 hour shift was treated as overtime, and therefore they were no longer considered to be working an afternoon shift.

[7] The principal position put by United Voice is that clause 20 provides that an afternoon shift is any shift finishing after 6.30 p.m., and it attracts a 20% loading. The loading is required to be paid on ordinary hours worked in that shift. In its submission this is based on a plain reading of the words in sub clause 20.1.1.

[8] It submits that Wilson Security has not previously distinguished between shifts that finish after 6.30 p.m., and the shift loading has been paid for all shifts that finish after that time. It again submits this is the correct application of clause 20. It accordingly seeks an order that an afternoon shift, as defined by sub clause 20.1.1, is any shift finishing after 6.30 p.m. regardless of whether it extends beyond that time as a consequence of overtime being worked.

[9] United Voice submits the relevant provisions have a plain meaning and are not ambiguous. It refers to sub clause 20.1.1, which states that “afternoon shift” means any shift finishing after 6.30 p.m. 2 In its submission there is nothing in this definition that acts to exclude shifts that finish after 6.30 p.m. because of overtime being worked. The Commission should therefore adopt the plain meaning of “afternoon shift” in clause 20.1.1 and make the orders sought.

[10] It also refers to the Full Bench Decision in Golden Cockerel 3 and submits the principles set out in the decision make clear that context may be drawn from the text of an Agreement when viewed as a whole. It next refers to sub clause 20.1.5.1 which indicates that the loading for the afternoon shift is “20% of the appropriate base rate for each ordinary hour worked”.4 In its submission, “The Agreement limits the 20% loading to ‘ordinary hours’ worked in an “Afternoon shift” and in doing so contemplates the existence of hours other than ordinary hours in an “Afternoon shift.”5 It submits “this lends weight to the proposition that an “Afternoon shift” may be comprised of both ‘ordinary hours’ and overtime hours.”6

[11] It continues to submit that the hours in a weekly roster cycle that are considered to be overtime hours should be those worked after the completion of 38 hours. However, it submits that this is not a critical consideration in terms of its principal position because it does not require the Commission to determine when overtime falls. In its submission if a shift finishes after 6.30 p.m. it should be considered to be an afternoon shift, and the 20% loading should apply to all ordinary time hours worked in that shift.

[12] It also notes that the Agreement allows for 12 hour shifts to be worked as ordinary time and therefore employees working 12 hour shifts should not be considered to be working overtime hours until such time as 38 hours have been worked in a weekly roster.

[13] The Union’s submission makes reference to the rostered hours worked by one of its members, Mr Sami Senyuva, by way of example. This submission is supported by a witness statement provided by Mr Senyuva, which sets out his weekly roster. It indicates he normally works 41 rostered hours each week based on the following hours each day:

• Monday – 12 hours, finishing at 7 p.m.



• Tuesday – 5 hours, finishing at 12 noon.



• Wednesday – off.



• Thursday – 12 hours, finishing at 7 p.m.



• Friday – 12 hours, finishing at 7 p.m.



• Saturday – off.



• Sunday – off.

[14] Mr Senyuva has previously received the afternoon shift loading in respect of the ordinary time hours worked in each of his 3 x 12 shifts in this repeating roster cycle. He has also received an hourly rate of time and a half for the 3 hours in the week that extend beyond 38 hours. This has been calculated on a daily basis with one overtime hour being attributed to the last hour of each of the 3 x 12 hour shifts. United Voice estimates that in Mr Senyuva’s case the changes now proposed will result in a reduction in his weekly earnings of approximately $144, or around 13% of his total weekly income.

[15] United Voice relies on the evidence of the roster worked by Mr Senyuva in support of its submission that it demonstrates a pattern of hours which constitute a repeating weekly roster cycle that regularly involves shifts that finish after 6.30 p.m. In its submission it therefore involves shifts that come within the definition of “afternoon shift” in sub clause 20.1.1 of the Agreement.

[16] However, United Voice also puts a position in the alternative in the event the Commission does not accept its primary position. It submits, in the alternative, that the overtime hours in any roster should be those worked at the end of the particular roster cycle. For example, the overtime hours in a one week roster cycle would be those hours worked beyond 38 hours. As a consequence the afternoon shift loading would apply to any shift finishing after 6.30 p.m., except where that shift finishes by way of overtime worked at the end of the roster cycle. It contrasts this approach with that now proposed by Wilson Security whereby it intends to treat the last hour of each shift as overtime, with the consequence that no afternoon shift penalty is paid because no ordinary time hours extend beyond 6.30 p.m.

[17] United Voice refers to sub clause 22.2.1 of the Agreement in support of this position. It provides that overtime, that is not voluntary overtime, is ordinary overtime. It also refers to sub clause 7.1.1 which provides that the “ordinary hours of work each week for a full time employee are 38, which may be averaged over a period of between one and 12 weeks.” 7 It continues to submit, against this background, that the ordinary hours of work are exceeded when an employee works more than 38 hours in a one week roster cycle, or more than the equivalent maximum in any other roster cycle.

[18] It submits in the case of Mr Senyuva that his hours of work are all ordinary hours until he exceeds 38 hours in his one week roster cycle. Therefore, it is only the last 3 hours of work in his ordinary roster cycle that are not ordinary hours, with those hours being from 4 p.m. to 7 p.m. on Friday afternoon. Therefore, the first two x 12 hour shifts in his regular roster should be treated as afternoon shifts, and the afternoon shift loading paid in respect of those hours.

[19] Wilson Security acknowledges, in response, that the issue for determination is whether clause 20 in the Agreement entitles an employee, whose ordinary hours finish before 6.30 p.m. but whose overtime hours extend beyond this point, to the afternoon shift allowance for the hours worked prior to 6.30 p.m. In addition, it does not take issue with the facts set out in the witness statement of Mr Senyuva.

[20] It also submits in regard to the position put in the alternative by United Voice that it seeks an outcome that extends beyond the Commission’s jurisdiction at this point because the Union has not complied with the steps in the settlement of disputes procedure in the Agreement in regard to this claim. It submits that the matter now in dispute before the Commission is only about payment of the shift allowance, and not about the allocation of overtime. The overtime issue should therefore be progressed through the appropriate steps in the dispute resolution procedure before the Commission can deal with it. It notes in this context that the employees have always been paid for an hour of overtime at the end of each 12 hour shift and it is not proposing that this change.

[21] Wilson Security also refers to the principles set out in Golden Cockerel and agrees that clause 20 of the Agreement and clause 20.1.5, in particular, have a plain meaning and there is no ambiguity. In its submission that plain meaning makes clear that an employee is only entitled to the afternoon shift loading if their ordinary hours, as opposed to their overtime hours, extend beyond 6.30 p.m. It continues to submit that clause 20.1.1 is a “span of hours” clause, and is concerned with defining the span of an employee’s ordinary hours.

[22] In its submission the reference to “any shift” in clause 20.1.1 means any shift of ordinary hours finishing after 6.30 p.m. It distinguishes this interpretation from one in which reference is made to “work” being performed, rather than ordinary hours, and in this context relies on the decision in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd (“Linfox”) 8.

[23] It also submits that the fact the shift allowance has been paid in the past is irrelevant in now construing the meaning of clause 20, and relies on the decision in Flight Attendants’ Association of Australia v Qantas Airways Ltd 9 in support of this submission.

[24] It also submits that overtime is a separate and distinct entitlement that is not referred to in clause 20. In addition, a consequence of the position advocated by United Voice is “double dipping” 10 in that the Union proposes that employees receive the benefit of both the shift loading and overtime penalties. In its submission employees who work beyond 6.30 p.m. as a direct consequence of working overtime are appropriately compensated by payment of the overtime penalty rate.

[25] In regard to the submissions put in the alternative Wilson Security submits that the Commission has recognised that an employer covered by an Award can allocate overtime on the terms most favourable to it, and it relies on the decision in Harland and Ors v MSS Security Pty Ltd (Harland) 11in support of this submission. It continues to submit that there is no difference between the provisions in an Award and an Agreement in this context, and the same principles apply in both cases. In its submission an employer is entitled to allocate when the overtime hours fall in a roster cycle, and if this results in the present matter in ordinary time hours concluding before 6.30 p.m. then the employees are not entitled to the shift allowance. It also acknowledges that the Agreement provides for 12 hour shifts to be worked, but submits that this does not require these shifts to be comprised entirely of ordinary hours. However, as indicated previously its principal submission in response to this alternative position is that it is not properly before the Commission at this point.

[26] Wilson Security submits, in conclusion, that the Commission should now determine that there is no requirement for it to pay the shift allowance and the Union’s application should be dismissed.

Consideration

[27] The consequences of this dispute are significant for those involved. The employees located at the offices of the Department of Treasury and Finance in Melbourne will suffer a significant decrease in their weekly earnings if Wilson Security is able to do what it now proposes. On the other hand Wilson Security submits the roster design, and the hours designated as overtime hours in the roster cycle, can be determined at its discretion, subject to the relevant provisions in the underlying Award or Agreement.

[28] Both parties acknowledge that the decision in Golden Cockerel has provided confirmation of the principles to be applied in interpreting an Award or Agreement. Those principles are set out in paragraph [41] of the decision in the following terms and I have sought to apply them in coming to a decision in this matter:

“1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In constructing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.” 12

[29] The Agreement makes clear, firstly, that it applies in place of any other Agreements or Awards including, in particular, the Security Services Industry Award 2010. 13 The relevant terms in the Agreement in the context of this dispute are as follows.

[30] Clause 7 “Rosters” states in sub clause 7.1.1 under the heading “Ordinary hours of work for full time security officers” that the ordinary hours of work each week are 38 and “maybe averaged over a period of between one and 12 weeks.” 14

[31] Sub clause 7.3.1 continues to provide that a roster setting out the ordinary days of duty, and the start and finish times on each day, is to be displayed in an accessible place at least 7 days in advance of the roster commencing. Sub clause 7.3.4 also provides that the minimum shift of “ordinary duty” is to be “no less than 4 hours … and of up to 12 hours.” 15

[32] Clause 20 is headed “SHIFT WORK ALLOWANCES” and provides in sub clause 20.1.1 that an “Afternoon shift” means any shift finishing after 6.30pm”. 16 Sub clause 20.1.5.1 then provides that “For any Afternoon shift, Night shift or Early morning shift as defined above, 20% of the appropriate base rate for each ordinary hour worked”.17

[33] The overtime provisions are set out in clause 22. Sub clause 22.2.1 states that “Ordinary overtime means any overtime that is not voluntary overtime.” 18 Sub clause 22.2.2.1 then provides that overtime worked on Monday to Friday is to be paid at the rate of time and a half of the “Monday to Friday rate” referred to in Schedule B (as appropriate) of this agreement for the first 2 hours and double time thereafter.”19 The sub clause then continues to provide a different scale of penalty rates for overtime work performed on Saturday and Sunday.

[34] United Voice submits at first instance that the words in sub clause 20.1.1 have a plain meaning and should be construed in that way. It submits this interpretation should apply regardless of whether a shift finishes after 6.30 p.m. by virtue of ordinary time or overtime hours being worked. In its submission there is nothing in the Agreement that acts to exclude a shift that finishes after 6.30 p.m., because of overtime hours being worked, from being entitled to the 20 % afternoon shift loading. It also points to the reference in sub clause 20.1.5.1 to the afternoon shift loading only applying to each ordinary hour worked, and submits this anticipates that an afternoon shift can be comprised of both ordinary and overtime hours. It submits, in conclusion, that the Commission should therefore adopt the plain meaning of “afternoon shift” in clause 20.1.1 and make the orders it seeks.

[35] United Voice also puts a submission in the alternative, in the event that its principal position is rejected. In this case it submits that the overtime hours in any roster cycle should be those hours worked at the end of the roster cycle. Therefore, the afternoon shift loading applies to any shift finishing after 6.30 p.m., except where this occurs as a consequence of overtime worked at the end of the roster cycle. It refers to sub clauses 22.2.1 and 7.1.1 in support of this submission.

[36] Wilson Security also submits that the words in clause 20 and sub clause 20.1.5, in particular, have a plain meaning and are not ambiguous. In its submission that plain meaning makes clear an employee is only entitled to the afternoon shift loading if ordinary time hours, as opposed to overtime hours, extend beyond 6.30 p.m. It continues to submit that sub clause 20.1.1 is a span of hours clause, and should be read as defining the span of an employee’s ordinary hours. It submits the reference to “any shift” in the sub clause means any shift of ordinary hours, and distinguishes this from a clause which makes reference to “work” being performed, rather than ordinary hours.

[37] It relies in support on the Full Bench decision in Linfox. That decision also concerned payment of shift allowances. The issue was whether employees performing overtime work prior to their regular start time could be considered to be shift workers. The Commissioner at first instance 20 distinguished between day workers and shift workers and concluded that working pre or post shift overtime did not make a day worker a shiftworker. He concluded that the employees were already compensated by the overtime penalty rates that applied, and the shift allowance did not apply in respect of their ordinary hours.

[38] The decision was taken on appeal. The Full Bench indicated at the outset that there was insufficient evidence before the Commission to decide whether the employees were shift workers or not. It referred, in particular, to the lack of evidence about the employees’ actual working patterns. It next concluded that the Commissioner was correct in concluding that nothing prevented pre-shift overtime being worked by shift workers. However, it questioned his conclusion about non-shift or day workers, who perform overtime work in circumstances that might come within the definition of shift work in the Agreement. That definition was set out in clause 51.2(d) of the Agreement in the following terms:

“51.2 Definitions

…

(d) ‘Shift Work’ shall mean work extending for at least four weeks and performed either in daily recurrent periods or in regular rotating periods within the limits defined for ‘Early Morning Shift’ or ‘Afternoon Shift’ or ‘Night Shift’.” 21

[39] The Full Bench concluded, based on an ordinary reading of the Agreement, that depending on the particular circumstances in which the overtime work is performed, “such work may come within the limits defined for “early morning shift”, “afternoon shift” or “night shift” in clause 51.2 and those workers might accordingly be entitled to the payment of shift allowances for relevant periods. This is clear from an ordinary reading of clause 51 of the Agreement and the definitions in the clause.” 22

[40] It stated in conclusion at [20]:

“In so deciding, we recognise that the real issue in dispute between the parties is whether day workers performing overtime work on a regular basis do become shift workers within the meaning of clause 51.2 of the Agreement. This can only be determined on the basis of evidence and material regarding the overtime work undertaken by the workers concerned and a consideration of whether such work falls within the definition of shift work in clause 52.1(d). Whether the “work” is performed as overtime or ordinary hours is not a relevant consideration. The evidence which would enable such a determination to be made is not presently before the Commission.” 23

[41] As indicated, Wilson Security seeks to distinguish the decision in Linfox because the definition of shift work in that Agreement make specific reference to “work,” which it submits extends to include both ordinary time and overtime hours, whereas there is no similar reference to “work” in clause 20 of the present Agreement. However, regardless of this distinction the Full Bench in Linfox has clearly acknowledged that shift work can include overtime hours. It concluded that this will ultimately fall to be determined based on the evidence of the employee’s regular working patterns.

[42] Wilson Security also submits it is entitled to allocate when overtime hours fall in any roster cycle in the absence of anything in the Agreement to the contrary. This entitles it to allocate hours on terms that are favourable to it, if it chooses, and it relies on the decision in Harland in support of this submission.

[43] There were a number of issues dealt with in Harland, one of which involved the payments to apply for particular rosters. This arose from a decision by the employer, MSS Security, to establish a roster which had 12 hours of overtime allocated to the Sunday shift in the roster cycle. The effect of this was that MSS avoided paying both double time penalty rates for work on Sunday as well as overtime penalty rates at other times in the week. Commissioner Williams concluded:

“[76] The Roster design in any workplace is at the discretion of the employer subject to the Award requirements.

[77] There is nothing inappropriate in the respondent designing its rosters to minimise its costs as the Full Bench has clearly recognised. In terms of the respondent’s approach to rostering ordinary hours and consequently where overtime hours fall in that roster, I am satisfied the respondent is entitled to operate under the roster it has designed in this case.

[78] The rostering approach of the respondent is consistent with the terms of the Award. There is nothing in the Award that prohibits Sunday shifts being 12 hours of overtime. I am satisfied that the respondent’s calculations, in terms of ordinary hours and overtime under their roster, meet the requirements of the Award.” 24

[44] The circumstances in Harland can be contrasted with those in the present matter. In Harland the employees argued it should be assumed that each 12 hour shift comprised 10 ordinary hours and 2 hours of overtime, rather than the overtime hours being allocated at the end of the roster cycle on Sunday. However, Commissioner Williams noted that the underlying Security Services Industry Award 2010 enabled shifts of 12 ordinary hours duration to be worked. In addition, the employees had explicitly agreed to work these hours in the contracts of employment they entered into. He also noted that an earlier Award Modernisation Full Bench 25 had deliberately provided for 12 hour ordinary time shifts to be an option under the Award, given the prevalence of these roster arrangements in the security industry, and the consequent need to avoid the cost impact that would otherwise be imposed if employers were not able to roster ordinary time shifts in this way.

[45] I have had regard to the decision in Harland. As indicated, the relevant parts of the decision are essentially dealing with the entitlement of an employer to allocate overtime in a roster cycle. Commissioner Williams concluded that the employer’s approach in that matter was not in breach of the Award. However, the decision is of limited relevance in determining the principal issue in dispute in this matter, being whether a shift that finishes after 6.30 p.m. because of overtime hours being worked can be considered to be an afternoon shift. In this context I am satisfied that the Full Bench decision in Linfox is of greater assistance in that it specifically considered whether employees performing overtime work on a regular basis can be considered to be shift workers. I have already made reference to the Full Bench’s conclusions in this regard, which are set out at [20] of the decision.

[46] Wilson Security also submitted that the Commission should have regard to the matter of United Voice – Queensland Branch v MSS Security Pty Ltd 26 in the event that a decision in that matter was handed down prior to this decision being issued. The Full Bench decision was handed down on 31 January 201727 and I have reviewed the relevant extracts. I have concluded in response that it does not assist in the determination of the present matter. In summary, the relevant aspects of the decision involved a comparison between provisions in the proposed Agreement, which provided that overtime will generally be allocated to hours that fall on Sunday, with those in the underlying Security Services Industry Award 2010, which provide that overtime is payable when hours in excess of the maximum have been worked. This comparison was made as part of an assessment about whether the Agreement satisfies the requirements of the “better off overall” test. However, the decision was not concerned with, and did not express a view about, an employer’s right to determine which are the overtime hours in a roster cycle. I also note that if the decision was considered relevant to the determination of this matter the parties would have been provided with an opportunity to make further submissions about its relevance or otherwise.

Conclusion

[47] As indicated, I am of the view that the Full Bench decision in Linfox is relevant to the determination of the present matter. It also concluded that “the real issue in dispute between the parties is whether day workers performing overtime work on a regular basis do become shift workers within the meaning of clause 51.2 of the Agreement.” 28 It concluded that the question of whether the work was performed as overtime or as ordinary time hours was not the determinative consideration. The question was instead “whether such work falls within the definition of shift work in clause 52.1(d).”29 I am satisfied that this approach is also appropriate in the determination of the present matter.

[48] The parties do not take issue with the witness evidence provided. The evidence of Mr Senyuva details the days and hours of work in his weekly roster cycle. These have been set out at an earlier point in this decision. They indicate he regularly works 41 hours each week, which includes 3 hours of overtime, given the weekly hours of work under the Agreement are 38. His evidence also indicates that his rostered hours are worked regularly in 3 x 12 hour shifts on Monday, Thursday and Friday, with each shift finishing at 7 p.m. He then works a further 5 hour shift on Tuesday which finishes at 12 noon.

[49] His evidence also indicates that this is “a roster that repeats each week,” 30 although he is sometimes asked to work additional hours. He also attached copies of what he described as his “regular roster,”31 which confirmed this cycle of days and hours. I am satisfied that this evidence establishes that this is a pattern of hours in his case which constitutes a regular repeating weekly roster cycle. It regularly involves shifts that finish after 6.30 p.m. I am also satisfied, based on the approach taken by the Full Bench in Linfox, that the shifts that finish after 6.30 p.m. in this regular roster cycle can be considered to be afternoon shifts under the definition in clause 20 of the Agreement, because they form part of a regular roster pattern.

[50] They can be contrasted with working hours that sometimes finish after 6.30 p.m. by way of sporadic or occasional overtime being worked. There is no indication in the evidence of Mr Senyuva that his working hours involve a roster that is structured around shifts that conclude before 6.30 p.m. The evidence instead points to a repeating roster that involves rostered shifts that regularly finish after 6.30 p.m.

[51] This conclusion is not impacted by the fact that the shifts only extend beyond 6.30 p.m. by 30 minutes. I am also satisfied that it is not affected by whether the hours involve ordinary time hours or overtime. Firstly, there is nothing in the definition in clause 20 that indicates that a shift must finish after 6.30 p.m by way of only ordinary time hours being worked. The only reference to ordinary hours is in sub clause 20.1.5.1, which limits the 20% shift allowance to “each ordinary hour worked.” This approach is also consistent with that of the Full Bench in Linfox. I am satisfied, in conclusion, that the shifts arrangements detailed in the evidence of Mr Senyuva come within the definition of “afternoon shift” in the Agreement, and are therefore entitled to the 20% allowance for each ordinary hour worked as provided for by sub clause 20.1.5.1.

[52] In coming to this conclusion I am not expressing any concluded view about what should be considered to be the three overtime hours in the 41 hours regularly worked each week in the example of Mr Senyuva’s repeating roster cycle. I have noted the decision in Harland, although it is different in some respects from the circumstances of the present matter. For example, in Harland the overtime hours were allocated to the end of the roster cycle, as would often be the case. Secondly, the decision notes that the employees had committed to a contract of employment which involved working 12 hour ordinary time shifts. Therefore, the logical conclusion of this arrangement was that the first 3 x 12 hour shifts in the roster cycle were considered to be ordinary time hours, with the hours that then extended beyond 38 being treated as the overtime hours in the cycle. The decision also notes that 12 hour shifts had been introduced into the underlying Security Services Industry Award 2010 through the Award Modernisation process to avoid imposing additional costs on employers in circumstances where 12 hour shifts were regularly worked.

[53] Wilson Security seeks to take a different approach by treating the 12 hour shifts regularly worked by the employees as not involving 12 hours of ordinary time, but instead comprising 10.86 hours of ordinary time and 1.14 hours of overtime. This is, of course, intended in an attempt to avoid the afternoon shift allowances that would otherwise apply. However, it also presupposes the ability to be able to roster 12 hour ordinary time shifts when it suits, but also to be able to treat those shifts differently at other times for the purpose of avoiding payment of afternoon shift allowances. However, given the decision I have come to it is not necessary to determine this issue about the allocation of overtime at this time, leaving aside any considerations about whether the issue is properly before the Commission at this point.

[54] It is also emphasised, in conclusion, that this decision is based on the available evidence that is now before the Commission, which primarily involves that concerning the working patterns of Mr Senyuva and what are understood to be similar working patterns of other employees of Wilson Security located at the Department of Treasury and Finance. The decision should not be considered to necessarily have application to other forms of roster arrangements or working patterns which may well be viewed and interpreted differently in terms of the entitlements that apply.

[55] However, I am satisfied in conclusion for the reasons indicated that the evidence in this matter establishes that a pattern of hours is being worked which constitutes a regular and repeating weekly roster cycle. It regularly involves rostered shifts which finish after 6.30 p.m. It follows that I am also satisfied that these can be considered to be “Afternoon shifts” under the definition contained in clause 20 of the Agreement.

COMMISSIONER

Appearances:

A Sands for United Voice.

T Angelopoulos for Wilson Security.

Hearing details:

2016

Melbourne.

20 December.

 1   AE414812.

 2   Ibid at 20.1.1.

 3   Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447.

 4   Above n 1 at 20.1.5.1.

 5 Applicant’s outline of submissions, received 23 November 2016, at [35].

 6   Ibid.

 7   Above n 1 at 7.1.1.

 8   [2014] FWCFB 9302.

 9   Flight Attendants' Association of Australia v Qantas Airways Limited, Transport Workers' Union of Australia v Qantas Airways Limited & QF Cabin Crew Australia Pty Ltd[2015] FWC 4822.

 10 Respondent’s submissions, dated 12 December 2016, at [17].

 11   [2013] FWC 8064.

 12   [2014] FWCFB 7447 at [41].

 13   MA000016.

 14   Above n 1 at 7.1.1.

 15   Ibid at 7.3.4.

 16   Ibid at 20.1.1.

 17   Ibid 1 at 20.1.5.1.

 18   Ibid at 22.2.1.

 19   Ibid at 22.2.2.1.

 20   Transport Workers’ Union of Australia v Linfox Australia Pty Ltd[2014] FWC 4188.

 21   Linfox Road Transport and Distribution Centres National Enterprise Agreement 2011 (AE885455).

 22   Transport Workers’ Union of Australia v Linfox Australia Pty Ltd[2014] FWCFB 9302 at [18].

 23 Ibid at [20].

 24   [2013] FWC 8064 at [76]-[78].

 25   [2008] AIRCFB 1000.

 26   [2015] FWCFB 6923.

 27   United Voice – Queensland Branch v MSS Security Pty Ltd [2017] FWCFB 651.

 28 Above n 8 at [20].

 29   Ibid.

 30 Exhibit UV2 at [4].

 31   Ibid.

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