United Workers' Union v Flavour Makers Pty Ltd
[2023] FWC 2662
•16 OCTOBER 2023
| [2023] FWC 2662 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Flavour Makers Pty Ltd
(C2023/720)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 16 OCTOBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Flavour Makers Pty Ltd (Flavour Makers) produces a range of dry and wet foods at several food development and manufacturing facilities at Braeside in Victoria. Relevantly, the Flavour Makers Enterprise Agreement 2022 (Agreement) applies to Flavour Makers and its direct employees working at those facilities. The Agreement also covers the United Workers’ Union (UWU). The UWU and Flavour Makers are in dispute about the spread of ordinary hours worked at the ‘dry’ and ‘wet’ sites at Braeside, and what (if any) shift penalties or overtime ought be paid for work performed before 6:00 am. The UWU applied under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the Agreement’s dispute settlement procedure at clause 15.
There is no dispute that there has been compliance with the procedure, that the Commission attempted to resolve the dispute but has not been able to do so and that the Commission may now arbitrate the dispute. For that purpose, the disputants have agreed that the dispute may be determined by the Commission answering the following questions:
- Has an agreement been reached to move the spread of ordinary hours to start at 5:00 am between the employer and:
- the majority of employees at the workplace;
- the majority of employees in a discrete section of the workplace; or
- an individual employee?
- If the answer to question 1 is “yes” with respect to any one or more employees, are those relevant employees entitled to the clause 12.2(a) Early Morning Shift Penalty of the Enterprise Agreement when they start work at or after 5:00 am and before 6:00 am if the spread of ordinary hours has been moved to include their start time?
- If the answer to question 1 is “no” with respect to any one or more employees, are those relevant employees entitled to the clause 12.2(a) Early Morning Shift penalty of the Enterprise Agreement when they start work at or after 5:00 am and before 6:00 am?
- If the answer to questions 1 and 3 is “no”, are those relevant employees entitled to overtime penalties for work performed between 5:00 am and 6:00 am?
Before turning to the proper construction of the Agreement and the questions posed, it is necessary to set out some factual context.
Flavour Makers conducts a food development and manufacturing operation producing various food products spanning three manufacturing facilities in Braeside, Victoria, including:
ØA dry blending site (dry site), which is approximately 5,000 square metres in size and where on any given day there are approximately 50 to 65 factory workers (including labour hire)
ØA wet sauce site (wet site) – Flavour Makers’ largest site – which is approximately 10,000 square metres in size and where between 75 and 100 factory workers (including labour hire) attend the site on a daily basis; and
Øa dry blend down packing site, which is a small location where between 15 to 20 workers are engaged.[1]
Factory workers at the wet site operate in small groups across the factory - a batching group, production rooms A to D (each producing different foods or sauces), retorting, machine operators, packers and sanitation. Each group works under the supervision of a team leader and reports to a Production Manager (also known as Production Supervisor).[2]
Flavour Makers operates two shifts at its wet and dry sites - a day and an afternoon shift.
At the wet site, approximately 75 workers work on the day shift and approximately 25 work on the afternoon shift - including labour hire. At the dry site, approximately 50 workers work the day shift and approximately 20 work the afternoon shift. Precise worker numbers vary depending on workload needs. Team members at each site will consistently work the same shift (either day or afternoon). An employee is only moved from one shift to the other on request if it can be accommodated.[3]
At the wet site, different groups of staff commence the day shift every half hour from 5:00 am. For example, small groups of blenders and forklift drivers are onsite to start preparing for production at 5:00 am and 5:30 am. Machine operators usually commence at 6:00 am and 6:30 am onwards. Packers start work at 7:00 am and 7:30 am onwards. The start times for all these groups of employees are staggered to cater for the manufacturing process (that is, the times listed are the earliest times, but not the only times that these different categories of employees commence work).[4]
A similar shift structure for the blenders, machine operators, packers and forklift drivers operates at the dry site. A small number of forklift drivers commence work at either 5:00 am or 5:30am. No other category of worker at the dry site starts work before 6:00 am. Most dry site workers commence work at 6:00 am or 7:00 am. There are approximately nine employees at the wet site, and three employees at the dry site, who commence work prior to 6:00 am. In each case these are permanent, full-time employees. No Flavour Maker casual employees, nor any employees at its other sites, are rostered to commence work prior to 6:00 am.[5]
Employees are typically rostered for 8.5 hours per day, which includes one 20-minute paid break that counts as time worked and one 30-minute unpaid break that does not. For example, an employee who commences work at 5:30 am will finish at 2:00 pm, an employee who commences at 6:00 am will finish at 2:30 pm and so forth. Employees who are engaged to work the afternoon shift customarily commence work at 2:00 pm or 2:30 pm. There is typically a 30-minute handover between the employees concluding the day shift and those on the afternoon shift replacing them in the same area of the factory. The afternoon shift workers continue the production process that has been initiated by the day workers and are then responsible for cleaning up the site at the end of the workday, though day workers in an area which does not continue production into the afternoon are similarly responsible for cleaning at the end of the shift.[6]
Each Production Manager sets the roster for the area under the manager’s responsibility. Daily rosters are created on Google Sheets which are posted on the whiteboard near the production office(s) so that workers can check the roster for the next day.[7]
Labour hire workers who perform work at the wet and dry sites are covered by the Food, Beverage and Tobacco Manufacturing Award 2020 (Award). However, under contractual arrangements between Flavour Makers and its labour hire providers, labour hire workers receive the same hourly rate of pay in respect of the same type of work as their counterparts who are directly employed by Flavour Makers, plus a 25% casual loading. [8]
Mr Steve Gogos is the Director of Operations for Flavour Makers, and he gave evidence that the:
. . . reason that blenders and forklift drivers are first to arrive is that they are required to perform pre-shift preparation to get the site ready for production to commence. In the case of blenders, this includes performing various preoperation inspections of the equipment, and receiving delivery of ingredients from the forklift drivers for mixing or cooking in a commercial kettle (at the wet site) or for blending (at the dry site). The task of the initial cohort of blenders involves inspecting the ingredients to ensure that the contents and volumes are correct and signing off the relevant paperwork prior to commencing their substantive cooking or blending duties.[9]
Mr Gogos was not challenged during cross examination about this evidence and neither of the employee witnesses, whose statements were admitted into evidence,[10] said that the duties performed by them when starting work before 6:00 am were other than as described above. No reply statements were filed to rebut Mr Gogos’ evidence.
Similarly, Mr Watwiboon Praemongkol, one of Flavour Makers’ production managers at its wet site, gave unchallenged evidence that:
Some blenders are rostered to start work at 5:30 am to complete the necessary preparation work in order to start the production line . . .
. . .
Prior to production commencing, the blenders arrange and check the ingredients to make sure they are correct, complete their pre-operations checklist, and check the blending station and equipment to make sure it is safe and clean to start the production line. It takes approximately 30 to 45 minutes to complete all the preparation work.
Production typically starts between 6:00 am and 6:15 am, unless there are any issues that arise with preparation. If production commences between these times, I consider the preparation to be efficient and ‘on target’ for my production rooms.[11]
The proper construction and effect of several provisions of the Agreement is in dispute. The applicable principles in construing an enterprise agreement are not in dispute and may be briefly stated. The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the industrial instrument, read as a whole, and the disputed provision’s place and arrangement in the instrument. The statutory framework under which the industrial instrument is made, or in which it operates may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances to determine whether there is any ambiguity in a provision of an industrial instrument. The language of an industrial instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.[12]
Clause 5 of the Agreement provides, inter alia, that it “incorporates the Award as amended from time to time provided that to the extent of any inconsistency between the provisions of this Agreement and the provisions of the Award, this Agreement shall prevail to the extent of that inconsistency”.
Commonly, enterprise agreements provide for a hierarchy of provisions rendering some provisions lower in the hierarchy to be of no effect if inconsistent with other identified provisions higher in the hierarchy. The inconsistency device is often deployed to distinguish express terms of an agreement with terms in materials incorporated by reference by assigning precedence to the express terms in the event of, or to the extent of, any inconsistency with an incorporated term. Clause 5 is a case in point.
Inconsistency between express and incorporated terms of an enterprise agreement may be identified in several ways. An express term may be directly inconsistent with an incorporated term, for example where there cannot be compliance with both or where a right or benefit is conferred by one provision which the other would take away. Express and incorporated terms may be inconsistent because, for example, one term has the effect of altering, impairing or detracting from another or other provisions of the agreement in a way that would create a burden that amounts to inconsistency. Express and incorporated terms may be inconsistent if one operates in a way that is repugnant to another. Indirect inconsistency might arise when an express term so comprehensively deals with a subject matter that on its proper construction it leaves no room for the operation of incorporated terms touching the subject matter. In this sense, the express term is said to “cover the field” in relation to the subject matter.
Clause 11 of the Agreement deals with hours of work and overtime. By clause 11.1 the “ordinary hours of work will be an average of one hundred and fifty two (152) ordinary hours per four week cycle.” Clause 11.2 provides for a 30-minute unpaid lunch break to be scheduled within ordinary daily hours, and which must be taken no later than 6 hours after work starts. It also provides that during a shift of 7 or more hours, an employee will be given one 20-minute paid morning rest break.
Clause 11.3 provides for the overtime rates applicable to “all work done outside ordinary hours on any day or shift”. It also provides that “[o]rdinary hours means the hours worked in an enterprise, fixed in accordance with clause 11.1”. Clause 11.4 deals with the assignment of overtime. Clause 11.5 deals with rest periods after overtime, while clause 11.11 deals with rest breaks during overtime work. Clause 11.6 deals with recall to work overtime after leaving work. Clause 11.7 deals with payment for a requirement that employees regularly hold themselves in readiness to work after ordinary hours. Clause 11.9 deals with payment for overtime work on a Sunday. Clause 11.12 deals with meal allowances when a rest break entitlement under clause 11.11 arises. Clause 11.13 deals with provision of transport if reasonable means of transport are not available when overtime work not regularly rostered finishes. Clause 11.14 deals with time off instead of payment for overtime. Each of these provisions apply to all employees as and when the circumstances arise.
Clauses 11.8 and 11.10 deal with Saturday and public holiday work for “day workers”. Separately the latter also deals with such work by continuous and non-continuous shiftworkers respectively. Clause 11.8 provides that a “day worker required to work overtime on a Saturday must be afforded at least four hours work or be paid for four hours at the rate of 150% for the first three hours and 200% thereafter, except where the overtime is continuous with overtime commenced on the previous day”. Clause 11.10 provides as follows:
(a) A day worker required to work overtime on a public holiday must be paid for a minimum of three hours work at the rate of 250%. The 250% is to be paid until the Employee is relieved from duty. [Underlining added]
(b) A continuous shiftworker required to work overtime on a public holiday must be paid for a minimum of three hours work at the rate of 200%.
(c) A non-continuous shiftworker required to work overtime on a public holiday must be paid for a minimum of three hours work at the rate of 250%. The 250% is to be paid until the Employee is relieved from duty.
Clause 12 is titled “Shift Work”. Clause 12.1 is titled “Definitions” and provides:
“Ordinary Hours”: Ordinary hours are as defined under clause 11.1.
“Day Work”: The span of ordinary hours for day work Employees shall be between 6.00 a.m. and 6.00 p.m. Monday to Friday inclusive.
“Early Morning Shift”: Early Morning Shift is defined as a shift starting at or after 4:00 am (0400 hours) and before 6:00am (0600 hours).
“Afternoon Shift”: Afternoon Shift is defined as a shift finishing after 6.00 pm (1800 hours) and at or before midnight (2400 hours).
“Night Shift”: Night Shift is defined as a shift finishing after midnight (2400 hours) and starting before 4:00 am (0400 hours).
“Rotating Shifts”: Rotating shifts are when an Employee works on rostered rotating shifts, i.e. day, afternoon and night.
“Shift Worker”: Whilst an Employee works on rotating shifts or permanent night shift, they shall be considered to be a Shift Worker for the purposes of this Agreement. Each hour (or part thereof) of Ordinary Hours of work will be paid at the rate applicable for the day on which the hour (or part thereof) was worked.
“Continuous Shift Worker” for the purposes of the National Employment Standards is a seven day Shift Worker who is regularly rostered to work Sundays and public holidays. [Underlining added]
Clause 12.2 is titled “Shift Work Availability” and provides:
A shift worker will be required to make themselves available to work shifts as determined by the Employer from time to time. Having to the regular roster or ordinary hours of work, the Employer will provide as much notice as is available including if possible providing Employees, employed to work rostered shift work, with a copy of the rostered hours they are required to work at least two (2) weeks prior to the commencement of each roster and giving fourteen (14) days’ notice to Employees if it is intended to alter agreed rosters.
But clause 12.2 also deals with payment, providing:
All ordinary hours of work performed between midnight on Sunday to midnight on Friday shall be subject to payment of the following shift penalties:
a) Early Morning Shift 15%
b) Afternoon Shift 15%
c) Night Shift 30%
[Underlining added]
As earlier noted, the Award is incorporated by clause 5 of the Agreement but the incorporated Award terms give way to the terms of the Agreement to the extent of any inconsistency between the Agreement’s terms and the incorporated Award terms.
Clause 12 of the Award deals with ordinary hours of work. Relevantly, clause 12.2 of the Award provides:
12.2 Ordinary hours of work—day workers
(a) Subject to clause 12.5, the ordinary hours of work for day workers are an average of 38 per week but not exceeding 152 hours in 28 days.
(b) The ordinary hours for day workers will not exceed 8 per day unless otherwise agreed in accordance with clause 12.5.
(c) The ordinary hours of work may be worked on any day or all of the days of the week, Monday to Friday. The days on which ordinary hours are worked may include Saturday and Sunday subject to agreement between the employer and the majority of employees concerned. Agreement in this respect may also be reached between the employer and an individual employee.
(d) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (6.00 am to 6.00 pm) may be moved up to one hour forward or one hour back by agreement between an employer and:
(i) the majority of employees at the workplace;
(ii) the majority of employees in a discrete section of the workplace; or
(iii) an individual employee.
Different agreements may be reached with the majority of employees in different sections of the workplace or with different individual employees.
(e) Any work performed outside the spread of hours must be paid for at overtime rates. However, any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose, for example, of getting the plant in a state of readiness for production work is to be regarded as part of the 38 ordinary hours of work.
(f) Ordinary hours of work—weekends
Where agreement is reached in accordance with clause 12.2(c) , the rate to be paid to a day worker for ordinary time worked is:
(i) between midnight on Friday and midnight on Saturday— 150% of the ordinary hourly rate; and
(ii) between midnight on Saturday and midnight on Sunday— 200% of the ordinary hourly rate.
(g) Ordinary hours of work—public holidays
(i) A day worker required to work on a public holiday must be paid for a minimum of 3 hours’ work at the rate of 250% of the ordinary hourly rate. The 250% rate must be paid to the employee until the employee is relieved from duty.
(ii)Hours of work performed immediately before or after a part-day public holiday, that form part of one continuous shift, are counted as part of the minimum payment/engagement period in clause 12.2(g)(i).
Putting to one side Flavour Makers’ principal constructional argument as to inconsistency between clause 12 of the Award and the terms of the Agreement, to which I will return, the questions framed by the parties proceed on the basis that, inter alia, clause 12.2(d) of the Award operates as an incorporated term because it is not inconsistent with one or more of the express terms of the Agreement.
But clause 12.2(d) of the Award does not operate in isolation. Clause 12.1(b) provides that the facilitative provisions in clauses 12.2 to 12.5 operate in conjunction with clauses 7.3 and 7.4. Clause 12.2(d) contains a facilitative provision. Relevantly Award clause 7.3 provides:
7.3 Facilitation by majority or individual agreement
(a) The following facilitative provisions can be utilised by agreement between the employer and the majority of employees in the workplace or a section or sections of it, or the employer and an individual employee:
|
| Provision |
| 12.2(C) | Ordinary hours of work for day workers on weekends |
| 12.2(d) | Variation to the spread of hours for day workers |
| 12.5(a) | Methods of arranging ordinary working hours |
| 13.1(b) | Working in excess of 5 hours without a meal break |
| 19.1(b) | Payment of wages |
| 24.2 | Variation to the spread of hours for shiftworkers |
(b) Where agreement is reached between the employer and the majority of employees in the workplace or a section or sections of it to implement a facilitative provision in clause 7.3(a), the employer must not implement that agreement unless:
(i) agreement is also reached between the employer and each individual employee to be covered by the facilitative provision; and
(ii) the agreement reached is kept by the employer as a time and wages record.
(c) Where no agreement has been sought by the employer with the majority of employees in accordance with clause 7.3(b), the employer may reach agreement with individual employees in the workplace or a section or sections of it and such agreement binds the individual employee provided the agreement reached is kept by the employer as a time and wages record and provided the agreement is only with an individual employee or a number of individual employees less than the majority in the workplace or a section or sections of it.
[Underlining added]
As I have already observed, the questions posed by the parties only arise if clause 12.2(d), and necessarily clause 7.3, as incorporated terms operate because there is no inconsistency with one or more express provisions of the Agreement. Award clause 12.2(d) is part of a scheme regulating ordinary hours for day workers found in clause 12.2. Inconsistency may therefore arise in connection with the operation of the clause as a whole or with one or more of the various paragraphs with which clause 12.2 deals.
Flavour Makers’ principal construction argument is that Award clause 12.2(d) is inconsistent, inter alia, with Agreement clause 11.1 which on its face provides for an averaging of 152 ordinary hours over a four-week cycle and appears unincumbered by any limit on the spread within which those hours may be worked and Agreement clause 11.3(b) which provides that “ordinary hours” means the hours worked in an enterprise, fixed in accordance with clause 11.1. Flavour Makers says that the ‘definition’ of “Day Work” in clause 12.1 of the Agreement, which contains a span of ordinary hours for day work employees, does not affect the breadth of clause 11.1 because the definition is confined to “shift work” which includes day work which is a shift. It says that shift work may be engaged in only by a shift worker as defined in clause 12.1, namely an employee who works on rotating shifts or permanent night shift.[13] And “rotating shifts” are worked when an employee “works on rostered rotating shifts i.e. day, afternoon and night”.
There is some superficial attraction to these contentions and the construction Flavour Makers advances is arguable but ultimately, I do not consider it to be correct. Clause 11.1 of the Agreement fixes ordinary hours for both day and shift workers. So much is clear from clauses 11.1, 11.3 and 12.1. The various paragraphs of clause 11 deal with entitlements which apply depending on circumstances and have variable application to, in some cases, all employees in the circumstances, particular shift work employees in the circumstances, and day workers in the circumstances. “Day worker” is not defined. But in the context of the Agreement, it seems clear enough that a day worker is an employee not engaged upon a rostered “shift”. Such a worker works day work. The three “shifts for which the Agreement makes provision are described in clause 12.1 and are the:
Øearly morning shift, which is a shift starting at or after 4:00 am and before 6:00 am;
Øafternoon shift, which is a shift finishing after 6.00 pm and at or before midnight; and
Ønight shift, which is a shift finishing after midnight and starting before 4:00 am.
These shifts attract particular “shift penalties” for which Agreement clause 12.2 provides. Although “day work” appears under a heading “Definitions” in clause 12.1, in terms it is neither definitional nor is it concerned with a shift. Instead, it fixes a span within which ordinary hours may be worked by “day work Employees”. This provision does not speak of a span of ordinary hours that may be worked on a “shift” that is a day shift. This is to be compared to the definitions respectively of early morning, afternoon and night shift, each of which is described as “a shift” starting at or after and before, or finishing after and at or before or finishing after and starting before the various times specified.
Clause 12 also distinguishes between a shift worker, and an employee “employed to work rostered shift work”. As clause 12.1 makes clear a “shift worker” is an employee who works on rotating shifts or permanent night shift, and ‘rotating shifts” involve an employee working on “rostered rotating shifts i.e. day, afternoon and night”. Thus, an employee rostered, for example, to work only early morning shifts or only afternoon shifts or rotating between afternoon and night shifts or early morning and afternoon shifts, would not be a “shift worker” as defined for the purposes of the Agreement. Employees so rostered would be “[e]mployees, employed to work rostered shift work”, with which the second paragraph of clause 12.2 is concerned. That phrase would also capture an employee who is a shift worker as defined but is broader to also capture an employee who is rostered to work shift work but is not working rotating shifts or permanent night shifts.
When understood in this way, “day work” described in clause 12.1 is not rostered “shift work” and is intended to distinguish when ordinary hours may be worked by “day work Employees”, from those worked by a “shift worker” and “Employees, employed to work rostered shift work”.
In substance “day work” describes the span of ordinary hours that may be worked by a “day worker” in relation to whom various provisions in clause 11 specifically apply. And a shift worker may also work day work on a rotating basis with other shifts. Thus, although clauses 11.1 and 11.3(b) provide that ordinary hours will be as fixed on an average of 152 hours over a four-week cycle, this is concerned with how many hours and the period of averaging. Although titled “shift work”, clause 12 is concerned with when ordinary hours may be worked and the consequences of working those ordinary hours at particular times depending on whether the employee is a day worker, a shift worker or an employee employed to work rostered shift work.
That the description of day work and the limit on the span of ordinary hours in clause 12.1 is not limited to shift work is also supported by the statutory context in which the Agreement has been made. It has been assessed as passing the better off over all test (BOOT). The construction I favour, results in the provisions of the Agreement being no less beneficial than clause 12 of the Award vis-à-vis day workers whereas the principal construction advanced by Flavour Makers would result in a detriment compared to the Award. And although in a proceeding under s 739 of the Act one cannot properly undertake a reconsideration of the BOOT, an interpretation of a provision of the Agreement with a contested meaning may be favoured if it is consistent with the basis upon which the Agreement was approved by the Commission. The difficulty with the principal construction adopted by Flavour Makers is that it would clearly render the clause less beneficial than clause 12.2 of the Award and would thereby call into question the veracity of the declaration filed[14] in support of the approval of the Agreement.[15]
But the construction I prefer also invariably leads to a conclusion that clause 12.2 of the incorporated Award is inconsistent with the description of “day work” in Agreement clause 12.1 read with clause 11. First, because there is no capacity in the day work span of hours to vary the span by agreement. Were such a capacity intended, then there would be no need for the more limited description of the span in Agreement clause 12.1 compared to Award clauses 12.2(c) and (d). Second, the day work span of ordinary hours in Agreement clause 12.1 sits uncomfortably with Award clause 12.2(e) when regard is had to Agreement clause 11.3(a). Third, there is no capacity in the span to work “day work” on a weekend, there are no rates for day work ordinary hours on a weekend, only overtime rates. If Award clause 12.2(c) operates to allow an agreement to work “day work” ordinary hours on a Saturday, the Award provides that such work is paid at 150% of the ordinary hourly rate, but such work would be overtime reading Agreement clauses 12.1 and 11.3 together with 11.8, resulting in higher payments and minimum engagement. Taken together Award clause 12.1 is repugnant to the operation of clause 11 and the day work description in Agreement clause 12.1, and it cannot operate. Moreover, the facilitative provisions in Award clause 12.1 are part of a scheme tailored to the hours of work provisions for which clause 12 provides. The facilitative provisions are not expressly replicated in clause 11 of the Agreement, which with Agreement clause 12, establishes a scheme for ordinary hours of work, shift work and overtime. That only parts of the provisions found in Award clause 12 are replicated in the Agreement suggests that other parts not replicated are intended not to operate because clauses 11 and 12 of the Agreement are intended to deal comprehensively with, in the sense that they cover completely, the subject matter with which the provisions are concerned.
On the evidence earlier set out, no Flavour Makers employee covered by the Agreement is a “shift worker” as described in clause 12.1. But some employees are rostered under the Agreement to commence work at or after 5:00 am and before 6:00 am.[16] These employees are employed to work rostered shift work, namely the early morning shift.
If a day worker, that is, an employee who is not employed to work rostered shift work, is required from time to time to commence work before 6:00 am when otherwise engaged to commence at or after 6:00 am, the work before 6:00 am is overtime because it is outside of the permitted span within which ordinary hours may be worked.
The import of Award clause 12.2(e) is discussed further below.
Given this conclusion the questions posed do not arise.
But if I am wrong, I am not persuaded on the evidence that a relevant agreement for the purposes of clause 12.2(d) exists. As earlier noted, Award clause 12.2(d) operates subject to clause 7.3.
Flavour Makers accepts that the agreements with employees, it alleges, are not wholly in writing. And although the UWU contends that “while not required by the Award, any agreement should be recorded by the Respondent in writing and retained”, it is not correct that the Award does not require recording of the agreement reached. Clause 7.3 operates upon any agreement under clause 12.2. Relevantly, an agreement reached is required to be kept by the employer as a time and wages record. Necessarily this must be in writing whether on paper or electronically. And employee records that would constitute a time and wages record must be kept in “a legible form and in the English language”.[17]
Moreover, as Award clauses 7.3(b) and (c) make clear, if an agreement is reached with a majority of employees in the workplace or section, the employer must not implement the agreement unless agreement is also reached with each individual employee covered by the agreement and the agreement reached is kept by the employer as a time and wages record. And where no majority agreement is sought, any individual agreement is only binding on the individual if agreement reached is kept by the employer as a time and wages record and the number of individuals with whom an agreement is made is less than the majority of employees in the workplace or section.
No evidence has been adduced suggesting the agreement(s) purportedly reached are kept by Flavour Makers as a time and wages record. Much less was a time and wages record produced. The question whether there exists a valid or binding agreement pursuant to the facilitative provisions in clause 12.2 is determined by reference to clause 7.3. How the parties or employees have conducted themselves in relation to pre 6:00 am starts, what is said to employees at induction or the nature of Flavour Makers’ practice during the operation of the Agreement and its predecessor is irrelevant. If clause 12.2(d) operates as an incorporated term, then the agreement it produces operates only in accordance with clause 7.3. The same may be said for the facilitative provision in clause 12.2(c).
For this reason, the answer to question 1 must be “no”. Consequently, because of the way it is framed question 2 does not arise.
As to questions 3 and 4, the answers depend on the proper construction of Award clause 12.2(e) and whether it operates in light of Agreement clause 5. Award clause 12.2(e) provides:
(e) Any work performed outside the spread of hours must be paid for at overtime rates. However, any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose, for example, of getting the plant in a state of readiness for production work is to be regarded as part of the 38 ordinary hours of work.
The reference to “the spread of hours” is to the “spread of hours” in Award clause 12.2(d). For the reasons earlier set out, I consider clause 12.2(d) to be inconsistent with the provisions of the Agreement earlier identified. Clause 12.2(e) is inextricably linked to clause 12.2(d) and so is also inconsistent with the Agreement. It is also inconsistent with the unequivocal statement in Agreement clause 11.3, without any express proviso, that “all work outside ordinary hours” is overtime. But if I am wrong in that conclusion, clause 12.2(e) does not deny early start employees the benefit of the early morning shift penalty for which clause 12.2 of the Agreement provides.
The uncontested evidence is that the work performed by employees rostered to commence work before 6:00 am is for the purposes of getting the work area in a state of readiness for production work. It is also uncontroversial that such work is continuous with ordinary hours rostered. The second sentence in clause 12.2(e) is a proviso to the general rule that work outside the spread of ordinary hours is overtime expressed in the first sentence. The time worked is as ordinary hours. But since the time the subject of the proviso in the instant case is worked before 6:00 am – as ordinary hours rostered – is time worked as part of an early morning shift, it attracts the early morning shift penalty.
Therefore, as to question 3, an employee rostered under the Agreement to commence duty before 6:00 am, is an employee employed to work rostered shift work, namely the early morning shift. It follows that such an employee is entitled to be paid the early morning shift penalty for which the third paragraph of clause 12.2 provides, namely 15%. The answer to question 3 is “yes”.
Question 4 as framed does not arise in light of my answer to question 3. But even if not so framed, the answer would be “no”. Assuming Award clause 12.2(e) is an operative term of the Agreement, on the evidence as relevant, employees rostered to commence work before 6:00 am perform the work continuously with ordinary hours and do so for the purpose of getting the facility in a state of readiness for production work, that work is part of the employee’s ordinary hours. The proviso in Award clause 12.2(e) is engaged and the time worked is ordinary hours and, although outside the permitted spread, it is not overtime.
Conclusion
For the reasons stated the questions posed do not arise because they are premised on the terms of Award clause 12.2 operating as an incorporated term, but by reason of clause 5 of the Agreement, these Award terms are inconsistent with clauses 11 and 12 of the Agreement properly construed, and so are of no effect.
If I am wrong in the conclusion, I would answer the questions posed as follows:
1.Has an agreement been reached to move the spread of ordinary hours to start at 5:00 am between the employer and:
a. the majority of employees at the workplace;
b. the majority of employees in a discrete section of the workplace; or
c. an individual employee?
Answer: “No”
2.If the answer to question 1 is “yes” with respect to any one or more employees, are those relevant employees entitled to the clause 12.2(a) Early Morning Shift Penalty of the Enterprise Agreement when they start work at or after 5:00 am and before 6:00 am if the spread of ordinary hours has been moved to include their start time?
Answer: “Does not arise”
3.If the answer to question 1 is “no” with respect to any one or more employees, are those relevant employees entitled to the clause 12.2(a) Early Morning Shift penalty of the Enterprise Agreement when they start work at or after 5:00 am and before 6:00 am?
Answer: “Yes”
4.If the answer to questions 1 and 3 is “no”, are those relevant employees entitled to overtime penalties for work performed between 5:00 am and 6:00 am?
Answer: “Does not arise”
In sum, whether the impugned incorporated Award terms are operative or not by reason of Agreement clause 5, the result is the same. Employees to whom the Agreement applies who are rostered to commence work before 6:00 am and who on the evidence commence such work at variable times from 5:00 am are working on an early morning shift and are entitled to the early morning shift penalty for which clause 12.2(a) provides. The dispute is determined accordingly.
DEPUTY PRESIDENT
Appearances:
L McDonald for the United Workers’ Union
A Pollock of counsel for Flavour Makers Pty Ltd
Hearing details:
Tuesday, 4 July
2023
Melbourne
Final written submissions:
Applicant: 12 May 2023
Respondent: 28 April 2023
[1] Exhibit 4 at [7]-[10]
[2] Ibid at [12]
[3] Ibid at [17]
[4] Ibid at [18]
[5] Ibid at [19]-[20]
[6] Ibid at [23]-[24
[7] Exhibit 5 at [17], see also exhibit 4 at [25]-[27]
[8] Exhibit 4 at [29]
[9] Ibid at [21]
[10] Exhibits 1 and 2
[11] Exhibit 5 at [19]-[22]
[12] Australian Workers’ Union v Orica Australia Pty Ltd[2022] FWCFB 90 at [18] and the authorities referred to therein; See also James Cook University v Ridd [2020] FCAFC 123 at [65] and the authorities referred to therein; Workpac Pty Ltd v Skene (2018) 264 FCR 536 at [197]
[13] Transcript PN280-PN294, PN317-PN364
[14] See Exhibit 3 and MP-7
[15] See also The Australasian Meat Industry Employees Union v Diamond Valley Pork Pty Ltd[2021] FWCFB 532 at [59]
[16] See Exhibit 5 at [17]-[19], Exhibit 4 at [17]-[20], [26]
[17] See Fair Work Act 2009, s 535 together with Fair Work Regulations 2009, reg 3.31
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