United Workers' Union v Coles Group Supply Chain Pty Ltd
[2021] FWC 6029
•30 SEPTEMBER 2021
| [2021] FWC 6029 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Coles Group Supply Chain Pty Ltd
(C2021/4706)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 30 SEPTEMBER 2021 |
Dispute arising under an enterprise agreement.
[1] This decision concerns an application made by the United Workers’ Union (UWU) under section 739 of the Fair Work Act 2009 (Act) to deal with a dispute in accordance with the dispute settling procedure in clause 21 of the Coles Goulburn (UWU) Distribution Centre Enterprise Agreement 2019 (Agreement).
[2] The dispute concerns the calculation of severance entitlements at clause 19 of the Agreement. Clause 19.9(f) of the Agreement provides that retrenchment payment shall be calculated on the basis of four weeks’ pay per year of completed service capped to 80 weeks. “Weeks’ pay” is defined in clause 19.9(f)(v) as follows:
“For the purposes of this clause “weeks’ pay” shall mean the average weekly earnings paid to an Employee for working their ordinary hours and shall include related shift penalties but exclude other penalties, allowances and overtime.”
[3] At issue is whether “related shift penalties” as used in clause 19.9(f)(v) is to be interpreted so as to include weekend penalties, specifically, penalties for work performed on a Saturday (Question).
[4] The UWU says that the answer to the Question is ‘yes’. Coles Group Supply Chain Pty Ltd (Coles) says that the answer to the Question is ‘no’.
[5] The dispute proceeded to Arbitration hearing before me on 27 September 2021. Mr Daniel Peatey appeared for the UWU. Pursuant to section 596 of the Act, Mr Andrew Pollock of Counsel appeared on behalf of Coles.
[6] Witness statements of Mr Benjamin Price (Price Statement), Mr Graham Reeves (Reeves Statement) and Mr Jason Wales (Wales Statement) (collectively, Statements), all storepersons at the Goulburn Distribution Centre of Coles (Goulburn DC), were tendered by the UWU. In light of confirmation from Coles that the witnesses would not be required for cross-examination, the witnesses did not attend the hearing. The Statements were received but were the subject of a number of objections by Coles. I address these matters later in this decision.
Initial matters
[7] It is not contested, and I am satisfied that the matter in dispute is a matter that arises under the Agreement. Further, it is not contested and I am satisfied that the dispute settlement procedure at clause 21 of the Agreement has been complied with.
Answer to the Question
[8] I have concluded that the answer to the Question is ‘no’. Penalties for ordinary hours of work performed on Saturday are not “related shift penalties” for the purposes of clause 19.9(f)(v) of the Agreement. These are my reasons for that conclusion.
Background
[9] Coles operates the Goulburn DC. Coles intends to close the Goulburn DC effective 5 October 2021.
[10] It is uncontested that the relevant factual background is as follows:
• On 5 October 2018 the employees at the Goulburn DC were notified that the site would be closing and their positions would be made redundant at some point in the future.
• In February 2019 discussions between Coles management and workers affected by the proposed closure of Goulburn DC commenced. Those discussions included improving the severance amounts payable upon redundancy by way of a variation to the then applicable agreement, the Coles Goulburn (NUW) Distribution Centre Enterprise Agreement 2016 (the 2016 Agreement).
• The discussions around varying the 2016 Agreement were ultimately unsuccessful and a new agreement was bargained for and made, being the Agreement, which came into force on 27 February 2020.
• On 10 June 2021 Coles communicated to employees at the Goulburn DC that a definite closure date had been identified and the site was to close on 5 October 2021 with redundancies for permanent employees taking effect that day.
[11] Approximately 125 employees are engaged on a permanent basis at the Goulburn DC. Of those, approximately 84 are rostered to work on a roster pattern that includes ordinary hours of work between midnight and 6 pm on a Saturday. Ordinary hours of work are not performed on a Sunday.
Relevant Agreement Provisions
[12] Shift penalties are dealt with at clause 10 of the Agreement. Clause 10.1 provides as follows:
“10. HOURS OF WORK, ROSTERING AND OVERTIME
10.1 Hours of Work and Penalty rates
The ordinary hours of work for all Employees will extend across twenty-four (24) hours a day, seven (7) days per week.
Employees will be paid rates only for hours worked (excluding overtime) within the specified times as follows:
| Monday to Friday | Midnight to 5am (excluding | 125%* |
| 5am to 6pm | 100% | |
| 6pm to midnight | 119%* | |
| Saturday | Midnight to 6pm | 150% |
| 6pm to midnight | 169% | |
| Sunday | All day (including a night shift that continues into Monday) | 200% |
| Public Holiday (except Good Friday and Christmas Day) | All day | 250% |
| Good Friday and Christmas Day | All day | 300% |
* For the abundance of clarity, the applicable overtime rate(s) will be payable in accordance with clause 11.3(b) of this Agreement for hours worked between 6.00pm and 5.00am Monday to Friday, whilst Employees are engaged within a span of hours, rather than shift work.
Penalty payments as specified above will not be included in:
(a) The calculation of overtime; or
(b) The calculation of any allowance; or
(c) With respect to any work for which any other form of penalty is made under this Agreement, except casual loading.”
[13] Redundancy and termination of employment is dealt with at clause 19 of the Agreement. The entitlement to severance benefits is set out at clause 19.9(f) and provides as follows:
“19.9 Redundancy and Retraining
(f) In addition to notice and any other benefits payable on termination, an Employee who is involuntarily retrenched in accordance with this clause will be paid a severance benefit calculated as follows:
(i) Four (4) weeks’ pay per year of completed service;
(ii) If the Employee is over the age of forty-five (45) years, an additional one (1) week’s pay per year of completed service to a maximum of ten (10) weeks’ pay;
(iii) The amount payable to an Employee under this subclause will not exceed eighty (80) weeks’ pay, excluding payment of a Goulburn Regional Closure Allowance (GRCA) to an Employee as detailed in subclause 19.9(g) of this Agreement. A Team Member’s directly engaged casual service with the Company will be included for the purposes of calculating a Team Member’s severance benefit in accordance with this clause.
(iv) Team Members who apply and are accepted by the Company for a voluntary retrenchment will be paid a severance benefit calculated as follows:
1. Four (4) weeks’ pay per year of completed service;
2. If the Employee is over the age of forty-five (45) years, an additional one (1) week’s pay per year of completed service to a maximum of ten (10) weeks’ pay;
3. The amount payable to an Employee under this subclause will not exceed fifty-two (52) weeks’ pay. Team Members who are accepted by the Company for voluntary redundancy in accordance with this subclause will not receive payment of a GRCA as detailed in subclause 19.9(g) and (h) of this Agreement. A Team Member’s directly engaged casual service with the Company will be included for the purposes of calculating a Team Member’s severance benefit in accordance with this subclause.
(v) For the purposes of this clause “weeks’ pay” shall mean the average weekly earnings paid to an Employee for working their ordinary hours and shall include related shift penalties but exclude other penalties, allowances and overtime.
[14] The full text of clause 19 is set out in Annexure A to this decision.
Consideration
Legal principles
[15] The principles applicable to the interpretation of enterprise agreements are well settled. These principles, known as the Berri Principles, were established in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 1(Berri). I set out the Berri Principles below:
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. 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.
3. The common intention of the parties is sought to be 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, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide (sic) the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) 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;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[16] The Full Bench of the Commission in Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd T/A Appin Mine 2 (Endeavour Coal), considered Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd3 (Golden Cockerel) and Berri in the following terms:
“[42] In Golden Cockerel, the Full Bench set out authorities which make it clear that while the task of construction begins with consideration of the ordinary meaning of the words of the agreement, regard must be paid to the context and purpose of the provision or expression being construed. Those authorities make clear that context and purpose are relevant to construction and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.
[43] In this regard, the Full Bench in Golden Cockerel had set out at [29] the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA. Relevantly, that explanation emphasises the following matters:
• Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means and there is always some context to any statement;
• Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”;
• To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;
• The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context; and
• Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction.” (footnotes omitted)
[17] Further, the Full Bench of the Commission in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA, 4 stated:
“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.”
[18] The principles applying to the interpretation of an enterprise agreement have also been the subject of much Federal Court exegesis. The Full Court of the Federal Court in WorkPac Pty Ltd v Skene 5said at [197]:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” (footnotes omitted)
Submissions
Summary of UWU’s submissions
[19] The UWU contends that penalties payable for ordinary hours worked on a Saturday, as set out in the table contained in clause 10.1 of the Agreement, are a “related shift penalty” for the purpose of clause 19.9(f)(v) and therefore ought be included in the calculation of a “weeks’ pay” for the purposes of an employee’s severance entitlement. 6 In its written submissions the UWU relies upon the following in support of that contention:
• such a construction best gives effect to the plain meaning of the words as they appear in clause 19.9(f)(v) and the way “penalty rates” are described in clause 10.1 and elsewhere in the Agreement;
• all previous instances of severance benefits paid under the identical provision in predecessor agreements have included penalties for work performed on a Saturday in the calculation of “weeks’ pay”. It is submitted that this post contractual conduct is admissible and an aid to construction; and
• to the extent that they are admissible as evidence of objective facts known to the parties when the Agreement was made, Coles has consistently made representations to employees that penalties for work performed on a Saturday would be included in the calculation of severance pay. 7
[20] Additionally, in oral submissions at hearing the UWU submitted that the construction advanced by it is consistent with a purposive reading of clause 19.9(f)(v), which, it submitted, is to provide a severance payment that is reflective of the pay that an employee could reasonably expect to receive every week for an ordinary working week. It was further submitted that this is consistent with the exclusion of overtime and allowances from the calculation of “weeks’ pay” in clause 19.9(f)(v), as such payments are “ad hoc” or occasional allowances payable only in particular circumstances required by the employer. In this context, the UWU made specific reference, by way of example, to a Team Leader allowance (Purposive Submission).
Summary of Coles’ submissions
[21] Coles submits that penalties for work performed on a Saturday (and Sunday) are not “related shift penalties” for the purposes of clause 19.9(f)(v); rather they are “other penalties” for the purposes of that clause. It contends that such a construction more coherently reconciles the text of clause19.9(f)(v) with the remainder of the Agreement’s broader text, context and purpose 8 and properly distinguishes between shift penalties, weekend penalties and public holiday penalties. It submits that such a construction is coherent with the text and structure of clause 10.1 and 19.9(f)(v), gives each part of 19.9(f)(v) work to do, and pays proper regard to the discrete industrial origins of weekend penalty rates.9
Consideration
Does clause 19.9(f)(v) have a plain and ordinary meaning?
[22] The relevant clauses are, as set out above, clause 19.9(f)(v) and clause 10.1 of the Agreement.
[23] At issue is whether penalties for weekend work, specifically work on a Saturday, are “related shift penalties” for the purposes of clause 19.9(f)(v) or alternatively, are “other penalties” for the purposes of that clause, such that they are excluded from the calculation of “weeks’ pay”.
[24] The UWU contends that on a plain reading of clause 19.9(f)(v) penalties for work on a Saturday are “related shift penalties”. 10 However, somewhat contradictorily, the UWU also submits that the clause is ambiguous and capable of more than one meaning.11 As such, it submits that the evidence of surrounding circumstances is admissible as an aid to the construction of clause 19.9(f)(v).12 To that end it seeks to rely upon the matters contained in the Statements.13
[25] Coles contends that on a plain reading of clause 19.9(f)(v) penalties for work on a Saturday are not “related shift penalties” and accordingly, led no witness evidence. Accordingly, it submits that the evidence sought to relied upon by the UWU is irrelevant and inadmissible and further, should such evidence be admitted, it ought be afforded minimal weight. 14 In addition, at hearing Coles raised a number of objections to the content of the Statements.15
Clause 19.9(f)(v)
[26] The textual starting point is clause 19.9(f)(v). Clause 19.9(f)(v) specifies the constituent elements of “weeks’ pay” to mean the average weekly earnings paid to an Employee for working their ordinary hours and expressly includes “related shift penalties” but excludes “other penalties, allowances and overtime.”
[27] The UWU submits that on an ordinary meaning of clause 19.9(f)(v) a shift penalty is “related” because it is a shift penalty that the employee is entitled to by virtue of when the employee works their ordinary hours. 16 Accordingly, it submits when ordinary hours are worked on a roster pattern that means hours are worked between 6pm and midnight Monday to Friday the penalty rate prescribed in clause 10.1 is a “related shift penalty” by virtue of it being payable based on when those ordinary hours are worked.17 Similarly, it submits that when ordinary hours are worked on a roster pattern that means hours are worked between midnight and 6 pm on a Saturday the penalty rate prescribed in clause 10.1 is a “related shift penalty” by virtue of it being payable based on when those ordinary hours are worked.18
[28] I reject those submissions. I consider they fail to first consider whether the payment for work on a Saturday is, properly construed, a shift penalty for the purposes of the Agreement. I consider, as submitted by Coles, 19 that the plain language of clause 19.9(f)(v) requires that for a penalty to be included within the definition of “weeks’ pay” two elements must be satisfied. Firstly, it must properly be characterised as a “shift penalty” and secondly, the shift penalty must be “related” to the ordinary hours worked by a relevant employee.
[29] It is uncontested that the Agreement does not contain a definition of “shift penalty” nor a definition of “related shift penalty”. Further, there are no provisions which specifically define a “shift” for the purposes of the Agreement.
Clause 10.1
[30] Clause 10.1 of the Agreement is headed “Hours of Work and Penalty rates”. It contains a table which sets out a series of percentage rates (expressed with reference to the wage rates set out in clause 8 of the Agreement) that are applicable to ordinary hours worked. The clause provides that ordinary hours of work “will extend across twenty-four (24) hours a day, seven (7) days per week.”
[31] In relation to clause 10.1, it is firstly to be noted that it does not, in express terms, differentiate between shift penalties and any other penalties. Further, whilst the table at clause 10.1 refers to a “night shift”, what constitutes such a shift is not expressly defined, nor is there any express reference in the clause (nor indeed anywhere else in the Agreement) to an “afternoon shift”. Secondly, notwithstanding the reference to “penalty payments as specified above”, the table includes a rate of 100% for shifts between 5.00 am and 6.00 pm Monday to Friday (that is, the relevant base rate of pay for each classification). Accordingly, not every percentage rate contained in the table is a penalty rate. Thirdly, the clause prescribes morning and evening penalties on weekdays for hours worked between midnight and 5.00 am, and 6.00 pm and midnight, respectively (collectively, Weekday Shift Penalties). It is uncontested that the Weekday Shift Penalties constitute “related shift penalties” for the purposes of clause 19.9(f)(v). Fourthly, the clause provides for a range of penalty rates for work performed on a weekend; specifically payment of 150% (that is, a penalty of 50%) and 169% (that is, a penalty of 69%) for hours worked on a Saturday between midnight and 6pm and 6pm and midnight, respectively, and a payment of 200% (that is, a penalty of 100%) for hours worked on a Sunday (collectively, Weekend Penalties). Fifthly, the clause prescribes a range of penalty rates for work on public holidays; specifically a payment of 250% (that is, a penalty of 150%) for work on all public holidays other than Good Friday and Christmas Day, and a payment of 300% (that is, a penalty of 200%) for work performed on those days (collectively, Public Holiday Penalties). Sixthly, the clause includes an asterisk next to each of the Weekday Shift Penalties within the table. As already set out above in paragraph [12], the text accompanying the asterisk is as follows:
“For the abundance of clarity, the applicable overtime rate(s) will be payable in accordance with clause 11.3(b) of this Agreement for hours worked between 6.00 pm and 5.00 am Monday to Friday, whilst Employees are engaged within a span of hours, rather than shift work.”(Asterisk Text)
[32] The UWU submits that there is no distinction in clause 10.1 between “shift penalties” and “other penalties”. 20 It submits that given the location of Weekday Shift Penalties and Weekend Penalties in the same table, the absence of any express statement as to which of the penalties are “shift” penalties and that all of the penalties are under described under the heading “Penalty Rates”, drawing a distinction between Weekday Shift Penalties and Weekend Penalties is artificial and inconsistent with a plain reading of clause 19.9(f)(v).21 Further, the UWU submits that such a construction is consistent with the principle of interpretation that each word in a clause should be given effect to, as the phrase “other penalties” applies to Public Holiday Penalties. The UWU submits that such a construction is supported by the separate inclusion of public holidays that attract a penalty rate of 150% and Good Friday and Christmas Day that attract a penalty rate of 200%.22
[33] I reject those submissions. Firstly, despite clause 10.1 being headed “Hours of Work and Penalty Rates”, not every rate contained in the table at clause 10.1 is, in fact, a penalty rate. Secondly, it is clear from the structure of the table that a distinction is made between penalty rates payable for work performed on weekdays, work performed on weekends and work performed on public holidays. Such a distinction is therefore neither artificial nor inconsistent with a plain reading of the clause. Thirdly, I consider that the Asterisk Text is of considerable relevance. I consider that text makes plain that employees may be engaged on shift work or span of hours work (that is, day work) rostering arrangements. Accordingly, the Agreement contemplates shift work. In such cases, the specified morning and evening penalty rates contained in clause 10.1 apply for such shift work. In the case of day work, overtime rates as set out in clause 11.3(b) of the Agreement apply. Shift work under clause 10.1 is limited to morning and evening shifts (being work between midnight and 5am and 6pm and midnight, respectively) worked Monday to Friday. I consider, therefore, that the penalties applicable for shift work (being work on Monday to Friday between midnight and 5 am and 6pm and midnight) are, properly considered, “shift penalties” for the purposes of the Agreement. Fourthly, I consider the fact that the penalties for work on Saturday, Sunday and public holidays are not treated in the same way supports the view that they are not “shift penalties” for the purposes of the Agreement but rather, are discrete penalties for working on days commonly considered days of rest. Historically, such penalties have evolved as compensation for the particular financial and non-financial disadvantages suffered by employees required to work on these days. 23 As such, there is nothing incongruent in a construction which delineates between penalties payable for work on a particular shift within a shift roster and those payable for work on a particular day. Fifthly, if, as contended by the UWU, there no distinction in clause 10.1 between “shift penalties” and “other penalties” it is unclear to me upon what basis it can be said that Public Holiday Penalties ought be regarded as an “other” penalty, rather than a “shift penalty” for the purposes of clause 19.9(f)(v). On such a contention, Weekend Penalties contained in clause 101.1 cannot be regarded as “shift penalties” for the purposes of clause 19.9(f)(v) and Public Holiday Penalties, also contained within clause 10.1, regarded as “other penalties” for the same purpose. Further, if “other penalties” was limited to Public Holiday Penalties only, I consider the clause would have been so expressed. I do not consider that the inclusion of separate penalty rates in clause 10.1 for work on Good Friday and Christmas Day alters this conclusion. Finally, as to the Purposive Submission, I do not find any support for that submission in the text of clause 19.9(f)(v), clause 10.1 or any other provision of the Agreement. Further, it is clear that certain allowances, such as the Team Leader Allowance,24 would be included in a relevant employee’s ordinary or expected weekly pay. Accordingly, the basis of the Purposive Submission is, in my view, misconceived and unable to be sustained.
Conclusion
[34] Accordingly, I consider that clause 19.9(f)(v) has a plain meaning. I consider that when read in context and as a whole, penalties for ordinary hours of work performed on a Saturday are not “shift penalties” and therefore cannot be “related shift penalties” for the purposes of that clause. Rather, I consider that on a plain reading of the clause penalties for work performed on a Saturday are “other penalties” for the purpose of clause 19.9(f)(v), and are therefore excluded from the calculation of “weeks’ pay” for the purposes of calculating an employee’s severance entitlement under clause 19.9 of the Agreement.
Evidence of surrounding circumstances
[35] As set out at paragraph [6] above, the UWU sought to led evidence of surrounding circumstances, as set out in the Statements. The UWU submitted that such evidence was admissible as an aid to construction of the Agreement. It did not appear contested that the Statements seek to adduce evidence of post-contractual conduct which, if admissible at all, is only admissible as an aid to construction if it is found that clause 19.9(f)(v) is ambiguous and susceptible of more than one meaning.
[36] In light of my finding that clause 19.9(f)(v) has a plain meaning, it is not necessary that I consider the admissibility, relevance of, or weight which ought be given to the evidence sought to be led by the UWU, nor the objections of Coles to it.
Disposition
[37] The answer to the Question is “no”. Penalties for ordinary hours of work performed on Saturday are not “related shift penalties” for the purposes of clause 19.9(f)(v) of the Agreement.
DEPUTY PRESIDENT
Appearances:
D Peatey for the Applicant.
A Pollock on behalf of the Respondent.
Hearing details:
2021.
Melbourne (by telephone):
27 September.
Printed by authority of the Commonwealth Government Printer
<PR734459>
Annexure A
19. RETRAINING, RELOCATION, REDEPLOYMENT, REDUNDANCY AND TERMINATION OF EMPLOYMENT
19.1 Full-time & Part-time Employees
Where the Company makes the decision to terminate a Full-time Employee or Part-time Employee, the following period of notice in writing will be provided:
| Period of continuous service | Notice |
| Less than 1 year | 1 week |
| 1 year or more but less than 3 years | 2 weeks |
| 3 years or more but less than 5 years | 3 weeks |
| 5 years and over | 4 weeks |
Employees over forty-five (45) years of age, with two (2) or more years’ continuous service at the time of termination, will receive an additional week's notice.
Where all or part of the relevant period of notice is not provided, the Employee is entitled to payment in lieu of notice for the relevant notice period or part thereof not provided by the Company.
Payment in lieu of notice is to be calculated using an Employee’s weekly ordinary time base rate of pay for the hours the Employee would have worked had the employment continued until the end of the minimum period of notice plus related penalties, loadings, allowances and overtime.
The period of notice in this clause does not apply in the case of dismissal for conduct that justifies instant dismissal, including but not limited to theft, fraud, assault, and refusal to carry out a lawful and reasonable instruction that is consistent with the Employee’s contract of employment; or Employees who are engaged for a specific period of time and/or for a specific task or tasks (limited tenure).
For the avoidance of doubt, consistent with clause 19.9(e) of this Agreement, where the Company makes the decision to terminate the employment of a Full-time Employee or Parttime Employee due to a forced retrenchment related to the full site closure of the DC, the Company will provide in writing to the affected Employee/s sixteen (16) weeks’ notice. The Employee upon the provision of the 16 weeks’ notice will be required to work their notice out.
19.2 Notice of Termination by the Full-time Employee and Part-time employee
A permanent Employee is required to give one (1) week’s notice.
Subject to the relevant State or Territory long service leave provisions, if an Employee fails to give notice, or to work out the full period of notice, the Company has the right to withhold monies due to the Employee under this Agreement to a maximum amount equal to the ordinary time earnings for the period of notice required.
At the Employee's request, and the Company's discretion, part or all of the period of notice required by an Employee may be waived by the Company and the Employee paid to the date of termination only.
19.3 Time off during notice period
Where the Company has given notice to an Employee of its intention to terminate the Employee's employment for reason of redundancy, the Employee may where convenient, be allowed time off without pay, for the purpose of seeking other employment. Such time off is to be taken at times that are convenient to the Company after consultation with the DC Manager.
19.4 Statement of employment
The Company will, when requested, provide the Employee with a written statement specifying the period of their employment and the classification or the type of work performed by the Employee.
19.5 19.5 Termination of Casual Employees
The giving or receiving of one (1) hour’s notice or payment in lieu thereof may terminate casual employment.
19.6 Relocation
The Company may relocate Employees to another Company location provided that the following requirements are met:
(a) the conditions of employment of the Employee are overall no less favourable to those prior to the relocation and the position is within the Employee’s skills, competency and/or knowledge;
(b) the location to which the Employee is to be relocated must not involve any unreasonable or excessive increase in travel time or distance for the Employee; and
(c) the Employee’s continuity of employment will be maintained.
19.7 Redeployment and Retraining
The Company may redeploy Employees either to other suitable positions at the Employee’s current location or to another Company location provided that the following requirements are met:
(a) the position to which the Employee is to be redeployed is within the Employee’s skills, competency and/or knowledge;
(b) the terms and conditions of employment of the Employee must be overall no less favourable than those just prior to the relocation;
(c) where the Employee’s skill, competency and/or knowledge does not match the position requirements then the Company will offer appropriate training to ensure the Employee is able to perform the duties of the position.
(d) if the Employee is redeployed to another site, it must not involve any unreasonable or excessive increase in travel time or distance for the Employee; and
(e) the Employee’s continuity of employment will be maintained.
19.8 Consultation
Where the Company has made a definite decision to declare positions redundant, as soon as practicable after making the decision the Company will consult with affected Employees, their nominated representative(s) and the Union about the redundancies and the reasons for them.
19.9 Redundancy and Retraining
(a) As an alternative to redundancy, the Company may relocate, redeploy and/or retrain Employees in accordance with the processes in clauses 19.6 and 19.7 of this Agreement.
(b) Where it is necessary to implement redundancies, the following process applies:
(i) Where only a part or function of the site is affected, the Company will call for expressions of interest for voluntary retrenchments amongst affected Employees.
• The Company will review any expressions of interest received and consider whether it will offer voluntary retrenchment. Whilst this will provide an avenue for Employees to volunteer, there is no automatic right to retrenchment.
• In reviewing expressions of interest for voluntary retrenchment, the Company will consider circumstances where an Employee can demonstrate genuine hardship associated with being redeployed or relocated.
• Applications shall be assessed against a set of criteria to ensure appropriate levels of operational skills are retained. In reviewing the applications the Company reserves the right to retain a requisite level of operational skills amongst its Employees. The Company reserves the right to reject applications for voluntary retrenchment based on the set of criteria.
• The Company may select Employees to be retrenched if there are insufficient volunteers for retrenchment.
• In reviewing expressions of interest for voluntary retrenchment or selecting Employees to be retrenched if there are insufficient volunteers, all else being equal, the length of service of an Employee will be a consideration.
(ii) Where an entire site is affected, the Company reserves the right to select Employees to retain a requisite level of skills to enable effective operations. Such a decision does not affect the entitlements of the selected Employees under this Agreement at the end of their respective notice period(s).
(c) Employees will be entitled to payment for accrued annual and long service leave in accordance with the relevant New South Wales State legislation and to accrued personal/carer’s leave.
(d) The Company shall give an Employee who is going to be retrenched for a reason other than the full site closure set out in clause 19.9(e), four (4) weeks’ notice (or payment in lieu thereof). In addition to this notice, Employees over forty-five (45) years of age at the time of giving of notice with no less than two (2) years’ service shall be entitled to an additional week’s notice (or payment in lieu thereof).
(e) Where the Company has made the decision to terminate the employment of a Fulltime Employee or Part-time Employee due to a retrenchment related to the full site closure at the DC, notwithstanding the provisions of subclause 19.9(d) of this Agreement, the Company shall give the affected Employee sixteen (16) weeks’ written notice.
(f) In addition to notice and any other benefits payable on termination, an Employee who is involuntarily retrenched in accordance with this clause will be paid a severance benefit calculated as follows:
(i) Four (4) weeks’ pay per year of completed service;
(ii) If the Employee is over the age of forty-five (45) years, an additional one (1) week’s pay per year of completed service to a maximum of ten (10) weeks’ pay;
(iii) The amount payable to an Employee under this subclause will not exceed eighty (80) weeks’ pay, excluding payment of a Goulburn Regional Closure Allowance (GRCA) to an Employee as detailed in subclause 19.9(g) of this Agreement. A Team Member’s directly engaged casual service with the Company will be included for the purposes of calculating a Team Member’s severance benefit in accordance with this clause.
(iv) Team Members who apply and are accepted by the Company for a voluntary retrenchment will be paid a severance benefit calculated as follows:
1. Four (4) weeks’ pay per year of completed service;
2. If the Employee is over the age of forty-five (45) years, an additional one (1) week’s pay per year of completed service to a maximum of ten (10) weeks’ pay;
3. The amount payable to an Employee under this subclause will not exceed fifty-two (52) weeks’ pay. Team Members who are accepted by the Company for voluntary redundancy in accordance with this subclause will not receive payment of a GRCA as detailed in subclause 19.9(g) and (h) of this Agreement. A Team Member’s directly engaged casual service with the Company will be included for the purposes of calculating a Team Member’s severance benefit in accordance with this subclause.
(v) For the purposes of this clause “weeks’ pay” shall mean the average weekly earnings paid to an Employee for working their ordinary hours and shall include related shift penalties but exclude other penalties, allowances and overtime.
(g) In addition to the relevant provisions of subclause 19.9(f) of this Agreement, an Employee who is involuntarily retrenched in accordance with this clause in circumstances where the Company has made the decision to terminate the employment of a Full-time Employee or Part-time Employee due to a retrenchment related to the full site closure at the DC , will be paid a one-off GRCA as at the Employee’s date of termination, as detailed below:
| Completed years of service | GRCA (gross amount) – Full-time Employee | GRCA (gross amount) – Part-time Employee working 2 days per week | GRCA (gross amount) – Part-time Employee working 3 days per week |
| 21 years | $2,000.00 | $1,000.00 | $1,500.00 |
| 22 years | $3,750.00 | $1,875.00 | $2,812.50 |
| 23 years | $7,500.00 | $3,750.00 | $5,625.00 |
| 24 years | $11,250.00 | $5,625.00 | $8,437.50 |
| 25+ years | $15,000.00 | $7,500.00 | $11,250.00 |
(h) Employees who are retrenched under this clause will also be provided with:
(i) Reasonable time without loss of pay (subject to operational requirements) to attend employment counselling or job interviews, but no more than one (1) day per week during the notice period. The Company may require reasonable proof of genuine job seeking.
(ii) A certificate of service, including the reason for termination.
(iii) Financial counselling and advice.
(iv) Outplacement counselling including written resume.
1 [2017] FWCFB 3005 (Berri)
2 [2017] FWCFB 4487 (Endeavour Coal)
3 [2014] FWCFB 7447 (Golden Cockerel)
4 [2017] FWCFB 4537
5 [2018] FCAFC 131
6 Applicant’s outline of submissions at [9]
7 Applicant’s outline of submissions at [10]
8 Respondent’s outline of submissions at [3]
9 Respondent’s outline of submissions at [7]
10 Applicant’s outline of submissions at [21]
11 Applicant’s outline of submissions at [42]
12 Applicant’s outline of submissions at [44]
13 Applicant’s outline of submissions at [44]
14 Respondent’s outline of submissions at [5]
15 Specifically, paragraphs [7-10], [13-16], [20-23], [24-27] of the Price Statement; paragraphs [6-7] of the Reeves Statement; paragraphs [6-10] of the Wales Statement
16 Applicant’s outline of submissions at [19]
17 Applicant’s outline of submissions at [20]
18 Applicant’s outline of submissions at [21]
19 Respondent’s outline of submissions at [8]
20 Applicant’s outline of submissions at [23]
21 Applicant’s outline of submissions at [26]
22 Applicant’s outline of submissions at [27-29]
23 See Applications by organisations of employees for awards and variations of certain awards with respect to rates of pay for work performed on Saturdays and Sundays (1947) 58 CAR 610 at 621-624 (Drake-Brockman ACJ, Sugerman J), and Federated Gas Employees’ Industrial Union v Geelong Gas Company and Ors [1919] 13 CAR 437 at 469-470 (Higgins J).
24 See Coles Goulburn (UWU) Distribution Centre Enterprise Agreement 2019 clause 6
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