United Workers' Union v Skycity Adelaide Pty Ltd T/A Adelaide Casino
[2022] FWC 391
| [2022] FWC 391 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Skycity Adelaide Pty Ltd T/A Adelaide Casino
(C2021/8625)
| COMMISSIONER PLATT | ADELAIDE, 8 MARCH 2022 |
Application to deal with a dispute in relation to the SKYCITY Adelaide Casino /UNITED WORKERS UNION Enterprise Agreement 2020
On 17 December 2021, the United Workers’ Union (the Union) filed an application under s.739 of the Fair Work Act 2009 (the Act) which contended that Skycity Adelaide Pty Ltd T/A Adelaide Casino (Skycity or the Respondent) had misinterpreted clause 46 of the SKYCITY Adelaide Casino/UNITED WORKERS UNION Enterprise Agreement 2020 (the Agreement) in relation to when Christmas Day falls on a Saturday.
The matter was first listed for a conference in front of Deputy President Anderson on 22 December 2021. The parties were not able to resolve the matter at this conference.
On 18 January 2022, the Applicant advised Deputy President Anderson’s Chambers that it wished to press its application and have the matter arbitrated. At this point, the dispute was allocated to my Chambers.
A Directions Conference was held on 2 February 2022. During the Directions Conference, both parties acknowledged that the Commission had the power to arbitrate the dispute under clause 19.3.1(c) of the Agreement, and the Applicant requested that those powers be exercised. The Respondent was granted permission to be represented by a lawyer under s.596(2)(a) of the Act on the basis of complexity and efficiency. Both parties were directed to file material in respect of the material and the dispute was listed for arbitration, by teleconference, on 23 February 2022.
Question to be determined and relief sought
During the Directions Conference, there was discussion about the exact nature of the question that was to be determined. The Applicant was given an opportunity to consider the question which they wished to put to me. The final question to be determined was put by the Applicant as below:
“Whether the meaning of ‘rostered and not required to work’ for the purposes of clauses 46.2.1 and 46.3.1 refers to shift workers that would ordinarily have been rostered on that day but for the day being Christmas day.”
The Union advised the relief sought from the Commission as follows:
“All permanent casino shift workers that would ordinarily have worked on the Saturday had it not been Christmas day, including but not limited to workers that work a template roster, be entitled to be paid for the day at their ordinary rates as if it was a public holiday.
The task for the Commission is to interpret the meaning of clauses 46.2.1 and 46.3.1 of the Agreement. What follows from that is a matter for the parties. As part of this process, there is also a need to examine the rostering provisions in the Agreement.
The Agreement
The Agreement covers all team members employed by Skycity “including salaried contract employees, engaged by the employer to perform duties that are contemplated by the classifications set out in Schedule 2”. The classifications in Schedule 2 cover persons engaged in Food and Beverage, Kitchen, Guest Services, Administration, Stores, Casino Gaming and Finance, Security, Host Responsibility, Event Technicians, Building Services and Hair and Beauty.
Clause 5.1 of the Agreement provides that it is read in conjunction with the Hospitality Industry General Award 2010, Joinery and Building Trades Award 2010, Timber Industry Award 2010 and Manufacturing and Associated Industries and Occupations Award 2010 as varied from time to time. Clause 5.2 provides that “Where a provision in the Award is more beneficial to an Employee, the Award provision will prevail over this Agreement to the extent that the Award provision provides a more favourable outcome for the Employee.”
It was not submitted that the rostering provisions contained in clause 15.5, or the Public Holiday provision of clause 35 of the Hospitality Industry (General) Award 2020 (the Hospitality Award) provided a more favourable outcome for the employees compared to the Agreement. In addition, a comparison on the provisions does not indicate that the relevant Award terms would provide a more favourable outcome.
Clause 46 of the Agreement provides:
“CLAUSE 46 - CHRISTMAS DAY FALLING ON A SATURDAY
46.1 Applicability
Despite any other provisions in the Agreement when Christmas Day falls on a Saturday and the declared Christmas Day public holiday is a day other than the actual day (that is, the Christmas Day public holiday has been substituted for another day), the following arrangements will apply but only for permanent team members who do not work a standard Monday to Friday week. Team members employed to work the standard week of Monday to Friday will be paid in accordance with the existing Public Holiday provisions of this Agreement.
46.1.1 Actual day means a Saturday that is a Christmas Day but the declared public holiday for the Christmas Day has been gazetted for another day.
46.1.2 Substitute Day means the day that is gazetted a public holiday in lieu of the public holiday for Christmas Day falling on a Saturday.
46.2 Full-time team members
46.2.1 A team member rostered and not required to work on the actual day will be paid for that day at ordinary rates but will not be entitled to the substitute day;
46.2.2 A team member rostered and required to work on the actual day will be entitled to:
(a) in addition to the normal Saturday payment (as appropriate), and
(b) the substitute day as a holiday. However, where the substitute day falls on a non-working day, the team member is entitled to either are additional day's pay or an additional day's leave with pay.
46.2.3 A team member rostered and required to work both on the actual day and also on the substitute day will be entitled to:
(a) for the actual day, the payment described in 46.2.2(a) and
(b) for the substitute day, either public holiday rates or be granted
46.2 Part-time team members
46.3.1 A team member rostered and not required to work on the actual day will be paid for that day at ordinary rates but will not be entitled to the substitute day;
46.3.2 A team member rostered and required to work on the actual day will be entitled to:
(a) the payment described in 46.2.2(a); and
(b) another day, which may or may not be the substitute day, as a holiday, or payment at ordinary rates for an additional day of equal length.
46.2.3 If the benefits of 46.3.1 or 46.3.2 apply, a team member who works on the substitute day will be paid at ordinary time rates such day.” (emphasis added)
Clause 37 of the Agreement provides:
“CLAUSE 37 - ROSTER OF HOURS
37.1 A roster for all team members shall be prepared by the Employer and shall be posted in a conspicuous place or places accessible to the team members concerned two weeks prior to the commencement of the roster. This may include posting of the roster on intranet, Microster or other electronic means.
37 .2 The roster may be changed by mutual consent at any time or by amendment of the roster on one week's notice. Where practicable two weeks' notice of rostered day or days off shall be given but the days off may be changed by mutual consent or through sickness or other cause over which the Employer has no control.
37 .3 Start and finish times will be displayed on the roster for full time team members. For part time and casual team members start times will only be displayed on the roster.”
Evidence
The Union submitted a Statement[1] from Mr Patrick Claessen, a UWU Organiser at Skycity. Mr Claessen’s relevant evidence is summarised as follows:
· Full-time workers work their shifts in accordance with a roster template through which they can predict their shifts in advance.
· Part-time shiftworkers work their shifts in patterns of blocks of day and night shift.
· Ordinarily on Christmas Day (which is a day the Casino is prohibited from trading), employees who are rostered and not required to work will have a Public Holiday not worked show up on their roster.
· Some departments (Security, Surveillance and from December 2020, the Hotel) will still require employees to work on the Public Holiday. Historically, a very small skeleton staff of approximately two security guards and two surveillance operators would work each shift on Christmas Day.
· On Christmas Day 2021, about 15 food and beverage staff worked in the Hotel.
Mr Cameron Tannock, General Manager People and Culture, submitted a Statement[2]and a Supplementary Statement,[3] and gave evidence on behalf of Skycity. His relevant evidence is summarised as follows:
· Skycity prepares its rosters weekly and posts them on Friday afternoons, two weeks in advance, via a system called Kronos.
· Rosters vary from week to week depending on business needs. Clause 36.12 of the Agreement recognises that rostering will have “due regard to the business requirements of the employer.” An employee who is not required to work is listed as having a rostered day off (RDO).
· On a ‘normal’ Saturday, about 30% of the waged workforce are rostered.
· Skycity’s gaming operations cannot trade on Christmas Day as a result of provisions in the Casinos Act 1997 (SA).
· A significantly reduced gaming workforce is rostered on Christmas Day however the other divisions of the business remain open (including the Hotel) and are staffed.
· On 25 December 2021, the gaming functions of Skycity were closed and employees were only required to work if they were employed in the Hotel or were conducting security or surveillance duties. A copy of the employee count for 25 December 2021 was submitted.
· The 2021 Christmas Day Roster was not amended to remove working hours from any employee after it was posted on 3 December 2021. The only change was to accommodate employee preference for annual leave on Christmas Day.
· Mr Tannock was not involved in the negotiation of the clauses in dispute.
No issues of credit arise.
Submissions
The Union contends that if an employee ‘ordinarily’ worked on a Saturday, the employee should have been rostered on Saturday 25 December 2021, and as a result would be entitled to additional benefits provided by clauses 46.2.1 and 46.3.1 of the Agreement.
The Union contends that I should read clauses 46.2.1 and 46.3.1 of the Agreement as meaning:
“A team member ordinarily rostered and not required to work on the actual day will be paid for that day at ordinary rates but will not be entitled to the substitute day.”
The Union contends that this position is supported by the context.
The Union submits that the intention of the drafting parties is clear, and the clause is intended to give workers a paid day off on Christmas Day when the casino is closed in exchange for shiftworkers working on the substitute public holiday when the casino can open and is busy.
The Union also submitted that if Skycity’s interpretation is accepted, clause 46 only addresses a negligible fraction of the workforce that could possibly work on Christmas Day but then are not required. It would result in clause 46 being silent about the entitlements of the majority of its workforce on Christmas Day, that is, those that would ordinarily work but do not work because the gaming areas are closed.
The Union submits that clause 37 does not permit the Respondent to roster employees as it sees fit upon provision of sufficient notice. The Union contend that reading the clause in this way would result in detriment for those persons who would ordinarily work on a Saturday but were not required to work because it was Christmas Day. When the clause was drafted, Skycity did not have non-gaming operations and historically only about a handful of security/surveillance operators and a manager would work on a Christmas Day.
The Union submits that Skycity’s interpretation is strained, fanciful, does not make commercial sense and thus must fail.
Skycity contends that it was entitled to vary the employees’ roster in order to meet its business requirements in accordance with clause 36.1 of the Agreement and did so by publishing a roster within the time frames permitted by clause 37. On 25 December 2021, a skeleton staff operated in the gaming areas as a result of the mandated restriction of gaming operations. A larger number of employees worked in the Hotel area. I note that these persons would have been entitled to additional benefits as detailed in clause 46.
Those persons who were not rostered to work on 25 December 2021 were paid in accordance with clauses 46.2.1 and 46.3.1 of the Agreement.
There is no dispute that the Casinos Act 1997 (SA) prohibits the operation of the gaming areas on Christmas Day.
The law
The principles in relation to the interpretation of an enterprise agreement have been summarised in the case of AMWU v Berri Pty Ltd[4]:
“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 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.”
The Respondent has drawn my attention to the following paragraph from Workpac Pty Ltd v Rossato & Ors[5]:
“It is no part of the judicial function in relation to the construction of contracts to strain language and legal concepts in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the parties so as to adjust their bargain. It has rightly been said that it is not a legitimate role for a court to force upon the words of the parties’ bargain “a meaning which they cannot fairly bear [to] substitute for the bargain actually made one which the court believes could better have been made.”
Consideration
The first task in interpreting clauses 46.2.1 and 46.3.1 of the Agreement is to understand the effect of clause 37, which deals with rostering.
Clause 15.5 of the Hospitality Award provides as follows:
“15.5 Rosters (Full-time and part-time employees)
(a) The following rostering provisions apply to full-time and part-time employees.
(b) The employer must prepare a roster showing for each employee their name and the times at which they start and finish work.
(c) The employer must post the roster in a conspicuous place that is easily accessible by the employees.
(d) The roster of an employee may be changed at any time by the employer and employee by mutual agreement or by the employer giving the employee 7 days’ notice of the change.
(e) An employee must have a minimum break of 10 hours between when the employee finishes ordinary hours on one day and starts ordinary hours on the next and a minimum break of 8 hours for a changeover of rosters.”
Clause 37 of the Agreement does not appear to conflict with the underpinning Hospitality Award and thus clause 5.1(b) has no impact.
Similar to that contained in the Hospitality Award, clause 37 of the Agreement clearly identifies that rosters will be prepared by the employer and posted two weeks in advance. Unilateral changes may be made not less than one week in advance. Any changes less than one week before the relevant shift must be by mutual consent.
On objective review of Clause 37, the Agreement appears to permit the employer an unfettered discretion in the development of the roster, although I note that clause 36.1.2 contains a reference that appears to require that rostering arrangements shall have due regard to the business requirements of the employer.
There is no evidence before me which allows me to determine that the intentions of the parties negotiating the Agreement (that is Skycity and the employees) was “to give workers a paid day off on Christmas Day when the casino is closed in exchange for shiftworkers working on the substitute public holiday when the casino can open and is busy.” If that were the case, clause 37 of the Agreement would be in conflict, as the roster for a person who had a regular roster could not be varied to take account of changing operational requirements (such as sporting or entertainment events in Adelaide).
The ‘context and purpose’ that is available to me (that is that rosters vary according to demand and that the gaming operations are prevented from opening on Christmas Day) supports a determination that clause 37 allows Skycity to publish a roster which took into account its anticipated business requirements on Saturday 25 December 2021.
The fact that Skycity did not commence its Hotel operations until 2020 does not impact on the interpretation of clause 37.
In my view, the historical development of the Hospitality Award and/or previous Agreements do not support an alternative interpretation of clause 37.
Accordingly, I find that the roster developed in accordance with clause 37 and published on 3 December 2021 is the ‘roster’ that is referred to in clauses 46.2.1 and 46.3.1 of the Agreement.
In so far as a ‘normal’ or ‘ordinary’ roster exists, clause 37 allows Skycity to unilaterally amend it upon provision of the required notice. This is consistent with a plain reading of clause 37. The clause is not ambiguous or susceptible to more than one meaning.
I turn now to clause 46 of the Agreement.
Clauses 46.2.1 and 46.3.1 of the Agreement do not appear to conflict with the underpinning Hospitality Award and thus clause 5.1(b) has no impact.
In my view, clauses 46.2.1 and 46.3.1 are not ambiguous and can be interpreted based on their plain meaning. The historical development of the Hospitality Award and/or previous Agreements do not support an alternative interpretation of these clauses.
There is no proper basis for the clauses to be interpreted with the word ‘ordinary’ preceding the term ‘roster’. The Union’s suggestion that the word ‘ordinary’ should be inserted before the term roster represents a re-writing of the Agreement and I decline to do so.
The evidence establishes that a skeleton crew worked in the gaming area and that a larger number of persons worked in the hotel operations. It appears to me that all other persons (excluding those on leave) were not rostered to work on Saturday 25 December 2021 and thus not entitled to the benefits provided by clauses 46.2.1 and 46.3.1.
I do not accept the submission that clause 46 does not have work to do based on the interpretation detailed above. It is clear that persons who were subject to a non-agreed roster change less than 7 days prior would have an entitlement under the disputed clauses. In addition, persons who worked on 25 December 2021 would have the benefit of clauses 46.2.2 and 46.3.2.
Conclusion
The roster referred to in clauses 46.2.1 and 46.3.1 of the Agreement is a reference to the roster published in accordance with clause 37 and not an ‘ordinary roster’. In find that Skycity was at liberty to reduce the number of persons rostered on Saturday 25 December 2021 in light of its business requirements. As a result of my interpretation of the relevant provision no relief arises.
COMMISSIONER
Appearances:
A Sultan for the Applicant.
J Roder for the Respondent
Hearing details:
2022.
Adelaide, by teleconference.
23 February.
[1] Exhibit A1
[2] Exhibit R1
[3] Exhibit R2
[4] [2017] FWCFB 3005 at [114].
[5] [2021] HCA 23 at [63].
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