United Workers' Union v Mars Australia Pty Ltd T/A Mars Petcare Australia
[2023] FWC 808
•4 APRIL 2023
| [2023] FWC 808 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Mars Australia Pty Ltd T/A Mars Petcare Australia
(C2022/6405)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 4 APRIL 2023 |
Application for Commission to deal with dispute in accordance with dispute settlement procedure in an enterprise agreement
Mars Australia Pty Ltd (Mars) operates a facility in Wodonga at which it produces pet food and pet nutrition products. Relevantly, Mars is covered by the Mars Petcare Australia Wodonga Enterprise Agreement 2019 (Agreement) in respect of its employees at the facility who work, subject to some exclusions not presently relevant, in supply operations. The Agreement describes the employees covered by it as “Associates”. The Agreement also covers the United Workers’ Union (UWU).
So far as is relevant, Mars operates two shift rosters at the facility affecting Associates. The first is the “three shift” roster, under which employees rotate through day shift (7:00am-3:00pm), afternoon shift (3:00pm-11:00pm) and night shift (11:00pm-7:00am) from Monday to Friday. The second is the “four shift” roster, which is a continuous roster, under which four different shifts rotate over day shift, afternoon shift and night shift seven days a week.
The three shift roster for 2022 is set out in an annexure to this decision and as will be apparent from that roster, each of the three shifts is colour coded (purple, navy and orange). Work upon the roster occurs according to rotating night, day and afternoon shifts across a four week cycle Monday through Friday, with one of the three coloured shifts commencing at 11:00 pm on a Sunday in week 1 of the cycle on a rotating basis, so that over a twelve month period each coloured shift will commence at 11:00pm on a Sunday in week 1 of the cycle on four occasions.
The UWU, its members working the third shift roster and Mars are in dispute about the entitlement of an Associate on a day on which the Associate is not rostered to work in a week that the Associate works night shift under the roster when that day coincides with a public holiday falling on a Monday.
The UWU has applied under s 739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with the dispute in accordance with the dispute settlement term in the Agreement. The parties agree that the dispute can be resolved by arbitration by determining the following questions:
Having regard to the Agreement
1. Does clause 24 (Public Holidays) of the Agreement “cover the field” with respect to payments to associates in respect of public holidays?
2. If the answer to (1) is “no”, is clause 37.3 (Rostered day off falling on public holiday) of the Food Beverage and Tobacco Manufacturing Award 2010 (the Award) incorporated into the terms of the Agreement?
3.If the answer to (2) is “yes” does clause 24(f) of the Agreement provide conclusively for payment entitlements with respect to public holidays that occur on a Monday when an associate is not rostered to work OR is Mars required to provide associates who work a rotating roster with:
a. 7.6 hours of pay;
b. 7.6 hours of annual leave; or
c. A substitute day off on an alternative weekday.
As is evident from the questions posed, the resolution of the dispute turns on the proper construction of the Agreement. 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.[1]
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. Most commonly the inconsistency device is employed 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. Inconsistency between provisions of different instruments or between different provisions of the same instrument may be identified in several ways. A provision may be directly inconsistent with another provision, 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. Provisions may be inconsistent because, for example, one provision 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. Provisions may be inconsistent if one operates in a way that is repugnant to another. Indirect inconsistency might arise when a provision of an agreement so comprehensively or exclusively deals with a subject matter that on its proper construction it leaves no room for the operation of other provisions touching the subject matter. In this sense, the first mentioned agreement provision is said to “cover the field” in relation to the subject matter.[2] This is the issue raised by the first question.
However, the question of inconsistency (cover the field) raised by the first question arises only if the other provisions (here clause 37.3 of the Award), extraneous to the express terms of the Agreement, also dealing with the subject matters are incorporated. But that issue is raised by the second question and only if the answer to the first is “no”. This is to put the cart before the horse. Inconsistency between an express term of the Agreement and another instrument does not arise (nor is it resolved by recourse to cover the field notions) unless the other instrument has some operative effect (either by its own force or through incorporation). The real issue with which the second question seeks to grapple is whether the identified provision of the Award is otherwise inconsistent with the Agreement. In that respect questions one and two are simply different aspects of the same question.
Clause 8 of the Agreement is headed “Conditions of Employment” and relevantly provides:
(a) This Agreement is intended to supplement the terms of the National Employment Standards (“NES”) and shall be read and interpreted in conjunction with the terms of the Food, Beverage and Tobacco Manufacturing Award 2010 (the “Award”) as at the date of approval, provided that where there is any inconsistency this Agreement shall take precedence.
(b) Mars is committed to maintaining award conditions as the minimum reference point for all Associates covered by this Agreement. Copies of the Award will be available from P&O as well as being accessible to Associates on the My P&O portal
(c) The clauses of the Award relating to part-time and casual employment are incorporated into this Agreement, provided that where there is any inconsistency between the Agreement and the relevant provisions of the Award, the Agreement will prevail to the extent of any inconsistency and as permitted by law.
. . .
The Agreement was approved by the Commission on 11 November 2019.[3] The Award, as at that date or otherwise, does not apply to the employees covered by the Agreement for as long as the Agreement applies to the employees in relation to their employment with Mars (s 57(1) of the Act). Consequently, it does not apply to Mars (s 57(2)). The requirement in clause 8(a) that the Agreement be read and interpreted in conjunction with the terms of the Award would be inutile unless the Award had an operative effect. It could only have such an effect if it was incorporated. This is consistent with the context of clause 8, which is titled “Conditions of Employment”, and which sets out the various sources of employment conditions (NES, Award, Agreement and Policies) and the rules pertaining to their interaction. True it is that 8(c) expressly incorporates part-time and casual employment clauses of the Award but the inconsistency resolution rule is not the same. Agreement provisions prevail only to the extent of inconsistency. This is therefore an exception to the more general rule in clause 8(a) where any inconsistency between the Agreement and the Award terms results in the Agreement having precedence. Thus clause 8(a) renders the inconsistent Award term inoperative as against the Agreement term regardless of the extent to which the terms are inconsistent, whereas clause 8(c) renders part-time and casual employment clauses of the Award inoperative only to the extent of inconsistency and so allows aspects of those provisions which are not inconsistent to continue to operate.
Mars contends that clause 24 (Public Holidays) of the Agreement which read in the context of the Agreement as a whole covers the field as to the subject matter of payments in respect of public holidays leaving no room for the operation of clause 37.3 of the Award.
A term of the Agreement will be inconsistent (in the cover the field sense) with an incorporated Award term if the former is intended to express completely, exhaustively or exclusively the content of the right, obligation, or term or condition of employment created by the Agreement term.
Clause 24 of the Agreement deals with aspects of public holiday entitlements and when read in the context of the Agreement, is by no means expressed to be an exhaustive dissertation of them. Nor is it intended, expressly or otherwise, to exclusively deal with the subject of public holidays. Clause 8(a) makes clear that the Agreement is intended to supplement the terms of the National Employment Standards (NES). Sections 114-116 of the Act set out the public holiday entitlements under the NES. Clause 9 of the Agreement provides that the Agreement “incorporates and is to operate in conjunction with the” NES. Clause 24 deals with limited aspects of public holiday entitlements. In terms it does not appear to supplement the NES entitlement or even replicate them. For example, nowhere in clause 24 is it expressly stated that an employee is entitled to be absent from employment on a public holiday or that Mars may request an employee to work on a public holiday and an employee may refuse a request that is unreasonable.
More relevantly, while clause 24(f) of the Agreement sets out the payment rule for an Associate who is not required to work on a public holiday, where in clause 24(f) is to be found the payment rule for an employee who, though required to work, refuses to work upon a public holiday because the request is not reasonable? For this, one must turn to the NES (or the NES incorporated term). The incorporated Award provisions in clauses 37.2 and 37.3 appear to supplement the NES and clause 24 of the Agreement does not deal with these matters. Clause 12 of the Agreement deals with rostered days off, and although the arrangement of hours as set out in the three shift roster, is one which does not countenance a rostered day off, clause 12 makes clear that such an arrangement may be made. If working hours are arranged to include a rostered day off pursuant to clause 12, which provision of clause 24 deals with the circumstances contemplated by clause 37.3 of the Award? Thus, clause 24 of the Agreement does not deal with a payment rule of a kind in clause 37.3 of the Award, and which provides for the very circumstance that might arise if an arrangement under clause 12 of the Agreement is made. Nothing in the language of clause 24, particularly when read in the context of the Agreement as a whole, suggests its terms as to payment are either exhaustive or exclusive, and the terms of clauses 8(a), 9 and 12 of the Agreement suggest the contrary is intended. All the more so when clause 8(b) of the Agreement contains a commitment to maintain Award conditions as the minimum reference point for all Associates.
As to inconsistency more generally, the relevant provision of the incorporated Award term said to give rise to inconsistency is clause 37.3 which deals with an employee’s entitlements when a rostered day off falls on a public holiday. Mars relies on its submissions underpinning its contention that there is cover the field inconsistency to also support its contention that there is inconsistency between clause 24 of the Agreement and 37.3 of the incorporated Award term. That takes the matter no further.
Clause 8(a) requires the Agreement to be read and interpreted in conjunction with the terms of the Award with the proviso that where there is any inconsistency the Agreement takes precedence. Having ruled out cover the field inconsistency, a determination whether provisions of the Agreement vis-à-vis the Award with which the Agreement is to be read and interpreted requires the identification of the Agreement provision or provisions which are inconsistent with clause 37.3 of the incorporated Award term. Clause 37 is a payment rule describing what payments are to be made to (or alternative entitlements afforded) an employee when a rostered day off falls on a public holiday.
Mars contends there is inconsistency because clause 24 (and specifically clause 24(f)) of the Agreement cannot be read harmoniously with the UWU’s preferred reading of clause 37.3 of the Award. In summary, the UWU contends that clause 37.3 is concerned with “days off that are specified in an employee’s regular roster or pattern of ordinary hours”. It says that this is distinct from the concept of credited and averaged arrangements contemplated in sub-clauses 37.3(b) and (c) and clause 28.6 of the Award. It contends that sub-clause 37.3(d) refers to “days off”, as distinct from “rostered days off” and that this encompasses the days off which are in dispute.
Clause 24(f) of the Agreement is also a payment rule. It provides for payment in circumstances where an Associate would ordinarily have worked on the day that is a public holiday but is not so required. That day would be a “day off” for the Associate not required, within the meaning ascribed to clause 37.3 by the UWU. If the UWU’s construction of clause 37.3 were correct I would accept that clause 24(f) of the Agreement and clause 37.3 of the Award are inconsistent at least in so far as clause 37.3 requires additional payments or the provision of an additional benefit. Clause 37.3 would, on the UWU’s construction, operate as an additional burden (not imposed nor contemplated by clause 24(f)) on Mars for not requiring an employee to work a public holiday. But the UWU’s construction is not correct.
Clause 37.3 of the Award provides as follows:
37.3 Rostered day off falling on public holiday
(a) Except as provided for in clauses 37.3(b) and (c) and where the rostered day off falls on a Saturday or a Sunday, where a full-time employee’s ordinary hours of work are structured to include a day off and such day off falls on a public holiday, the employee is entitled, at the discretion of the employer, to either:
(if) 7.6 hours of pay at the ordinary time rate; or
(ii) 7.6 hours of extra annual leave
(iii) a substitute day off on an alternative week day.
(b) Where an employee has credited time accumulated pursuant to clause 28.6,then such credited time should not be taken as a day off on a public holiday.
(c) If an employee is rostered to take credited time accumulated pursuant to clause 28.6 as a day off on a week day and such week day is prescribed as a public holiday after the employee was given notice of the day off, then the employer must allow the employee to take the time off on an alternative week day.
(d) Clauses 37.3(b) and (c) do not apply in relation to days off which are specified in an employee’s regular roster or pattern of ordinary hours as clause 37.3(a) applies to such days off.
Contrary to the UWU’s contention, the provision is not concerned with “days off that are specified in an employee’s regular roster or pattern of ordinary hours”. That contention overlooks an important caveat. The entitlement in 37.3(a) is enlivened “where a full-time employee’s ordinary hours of work are structured to include a day off” [underlining added].
Plainly clause 37.3(a) is concerned with the structuring of ordinary hours to include a day off. It is not concerned with days off appearing in a roster per se.
The Associates the subject of the third shift roster undertake non-continuous shift work within the meaning of the Award as the work, although carried on with consecutive shifts of employees throughout the 24 hours, it is performed over five rather than at least six consecutive days as required by clause 30.3 of the Award.
Clause 30.4 of the Award deals with Ordinary hours of work for non-continuous shiftworkers and provides:
(a) Subject to clause 30.4(b), the ordinary hours of work for non-continuous shiftworkers are an average of 38 per week and must not exceed 152 hours in 28 consecutive days.
(b) By agreement between the employer and the majority of employees concerned, a roster system may operate on the basis that the weekly average of 38 ordinary hours is allowed over a period which exceeds 28 consecutive days but does not exceed 12 months.
(c) The ordinary hours of work must be worked continuously, except for meal breaks at the discretion of the employer.
(d) Except at changeover of shifts an employee must not be required to work more than one shift in each 24 hours.
Clause 30.5 of the Award deals with the method of fixing ordinary working hours and relevantly provides:
(a) . . . the arrangement of ordinary working hours must be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned. This does not preclude the employer reaching agreement with individual employees about how their working hours are to be arranged.
(b) The matters on which agreement may be reached include:
(i) how the hours are to be averaged within a work cycle established in accordance with clauses 30.2, 30.3 and 30.4;
(ii) the duration of the work cycle for day workers provided that such duration does not exceed three months;
(iii) rosters which specify the starting and finishing times of working hours;
(iv) a period of notice of a rostered day off which is less than four weeks;
(v) substitution of rostered days off;
(vi) accumulation of rostered days off;
(vii) arrangements which allow for flexibility in relation to the taking of rostered days off; and
(viii) any arrangements of ordinary hours which exceed eight hours in any day.
Thus, under the Award, ordinary hours of work for a full-time employee are 38 hours per week and for a non-continuous shift worker, are an average of 38 per week and must not exceed 152 hours in 28 consecutive days. Hours may be arranged so that a rostered day off accrues during each 28-day period so that an employee works an average of 38 hours per week in that period. This may be achieved by rostering 40 hours (8 per day) for each of three weeks (5 days of work), and 32 hours (8 per day) in one of the four weeks (4 days of work) in the 28-day cycle. The fifth day in that week is a rostered day off. This produces an average of 38 hours per week across the cycle.
Alternatively, an accrual method may be used whereby 8 hours are worked according to the pattern above, but 7.6 hours is paid and 0.4 hours each shift accrues to a rostered day off. Over each averaging period of 28 days, the employee accrues the equivalent of 7.6 hours which is taken as a rostered day off each cycle. Under the first method, the rostered day off is without pay since the whole of the 38 hours each week or 152 hours for the 28-day period has been paid. Under the accrual method, the rostered day off is paid, because the full 8-hour day of each shift was not, and a fraction accrues to be taken and paid as a rostered day off later. And pursuant to clause 30.5(a) such an arrangement of hours must be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned and/or be subject to an agreement with individual employees and the employer about how their working hours are to be arranged (in accordance with the facilitative provision as identified in clause 8.3(a)).
As should be evident from the above, clause 37.3 is not concerned with any day on which an employee does not work. Rather it is concern with a particular species of day off – a rostered day off. The heading to the clause makes this clear. A rostered day off is one where the ordinary hours of work are structured to include such a day off. The examples I have given above show how this might be done. The arrangement of hours in the manner for which the third shift roster provides, is not an arrangement whereby ordinary hours of work are structured to include a day off within the meaning of clause 37.3(a). It simply provides two days each week on which an employee is not rostered to work ordinary hours. In this respect the two days off each week are akin to a weekend for a Monday to Friday employee, neither is a rostered day off within clause 37.3.
Understood in this way, clause 37.3 of the Award is not inconsistent with clause 24(f) of the Agreement, because the latter concerns the payment rule for an employee who would be or is rostered to work on a day that is a public holiday but is not required to work. Such a day is not a rostered day off contemplated by clause 37.3 of the Award. It is a public holiday – a day on which the employee is entitled to be absent from employment (subject to any request to work) and for which an entitlement to be paid for the ordinary hours that would have been worked on that day.
For the reasons explained above, the work pattern of the Associates working the third shift roster does not yield a rostered day off or a day off with which clause 37.3 of the Award is concerned. Consequently, an Associate working the third shift roster is not entitled to the payments described in clause 37.3 of the Award operating as an incorporated term on a day on which the Associate is not rostered to work in a week that the Associate works night shift under the roster when that day coincides with a public holiday falling on a Monday.
Conclusion
I answer the agreed questions posed as follows:
1.Does clause 24 (Public Holidays) of the Agreement “cover the field” with respect to payments to associates in respect of public holidays?
Answer: No
2.If the answer to (1) is “no”, is clause 37.3 (Rostered day off falling on public holiday) of the Food Beverage and Tobacco Manufacturing Award 2010 (the Award) incorporated into the terms of the Agreement?
Answer: Yes
3.If the answer to (2) is “yes” does clause 24(f) of the Agreement provide conclusively for payment entitlements with respect to public holidays that occur on a Monday when an associate is not rostered to work OR is Mars required to provide associates who work a rotating roster with:
a. 7.6 hours of pay;
b. 7.6 hours of annual leave; or
c. A substitute day off on an alternative weekday.
Answer: The is no entitlement under clause 37.3 of the Award operating as an incorporated term of the Agreement when an Associate is not rostered to work in a week that the Associate works night shift under the roster when that day coincides with a public holiday falling on a Monday. This is because such a day is not a rostered day off with which clause 37.3 of the Award is concerned.
DEPUTY PRESIDENT
Determined on the papers.
Written submissions:
United Workers’ Union, 23 November 2022 and 16 January 2023
Mars Australia Pty Ltd, 21 December 2022
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[1] 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
[2] Airservices Australia v Crouch[2023] FWCFB 21 at [18]-[19]
[3] Mars Australia Pty Ltd Re Mars Petcare Australia Wodonga Enterprise Agreement 2019 [2019] FWCA 7736
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