United Workers Union v Symbion Pty Ltd
[2025] FedCFamC2G 997
•30 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
United Workers Union v Symbion Pty Ltd [2025] FedCFamC2G 997
File number(s): SYG 1362 of 2022 Judgment of: JUDGE CAMERON Date of judgment: 30 June 2025 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – construction of enterprise agreements – relevant principles. Legislation: Fair Work Act 2009 (Cth) s.52
Fair Work (Registered Organisations) Act 2009 (Cth)
Cases cited: Avard v Australian Capital Territory [2025] FCAFC 72
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165
Dunford v Allen Taylor and Co Ltd (1990) 34 IR 423
Division: Fair Work Number of paragraphs: 59 Date of hearing: 9 April 2024 Place: Sydney Solicitor for the Applicant: Mr S Howe (United Workers Union) Counsel for the Respondent: Mr J Darams SC Solicitor for the Applicant: Pinsent Masons ORDERS
SYG 1362 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: UNITED WORKERS' UNION
Applicant
AND: SYMBION PTY LTD
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
30 JUNE 2025
THE COURT ORDERS THAT:
1.The first question posed for separate determination be answered “Yes”.
2.The second question posed for separate determination be answered “Day worker”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant, the United Workers’ Union (UWU), is an employee organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and commenced this proceeding on 15 September 2022. It filed an amended statement of claim (ASOC) on 10 February 2023. The UWU is entitled to bring this application on behalf of a number of its members (Members) who were employed at various times by the respondent, Symbion Pty Ltd (Symbion), which also trades as Onelink. Symbion is a national wholesaler of healthcare services and products which operates warehouses across Australia including at the Yennora Distribution Centre (Yennora). It is not necessary to identify the Members other than to record that it was agreed that Rhonda Cunningham and Richard Valeri were numbered among them, had become employees of Symbion at Yennora in mid-2016 and were employed there still as at the commencement of this proceeding. They were proffered as representative of the Members.
Relevantly, the following Enterprise Agreements (collectively Enterprise Agreements) were in force during the Members’ employment at Symbion and applied to the present parties pursuant to s.52 of the Fair Work Act 2009 (Cth) (FW Act):
(a)the Onelink and National Union of Workers Enterprise Agreement 2015 (2015 Agreement) which applied between 25 June 2015 and 30 January 2017; and
(b)the Onelink and National Union of Workers Enterprise Agreement 2017 (2017 Agreement) which applied between 31 January 2017 and 19 March 2020.
The ASOC made no allegation in relation to subsequent agreements.
I accept for present purposes that the Storage Services and Wholesale Award 2010 (Award) would have applied to the Members had it not been for the existence of the Enterprise Agreements.
Under the Enterprise Agreements, Symbion was to pay a 12.5% loading (early morning shift allowance) on the ordinary time wages of those of its employees covered by the Enterprise Agreements while on “early morning shift” (early morning shift).
The UWU alleged that the Members had worked an early morning shift and had been entitled to be paid the early morning shift allowance when they started work before “ordinary hours of work” commenced, which was variously 6:00am or 7:00am. Symbion disputed that, alleging that the Members were not entitled to be paid the loading because they:
(a)had been “day workers” (day workers) not “shiftworkers” (shiftworkers) and did not work shifts; and
(b)had agreed with Symbion to alter their spread of ordinary hours of work in accordance with cl.25.2 of the 2015 and 2017 Agreements, such that they did not work early morning shifts.
On 22 December 2023 the Court ordered by consent that:
Pursuant to rule 18.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, the following questions (“Questions”) be decided separately:
a.Under the Onelink and National Union of Workers Enterprise Agreement 2015 (“2015 Agreement”) and the Onelink and National Union of Workers Enterprise Agreement 2017 (“2017 Agreement”), was an employee required to be a “shiftworker” (as opposed to a “day worker”) to be eligible to be paid a shift allowance under clause 28.4 of those Agreements?
b.If the answer to (a) is ‘yes’, in the period between 15 September 2016 and 19 March 2020 were each of Rhonda Cunningham and Richard Valeri, a “shiftworker” or a “day worker”?
ENTERPRISE AGREEMENTS
The 2015 Agreement relevantly provided:
25. Hours of work
25.1 Ordinary hours of work-day workers
(a)The ordinary hours of work will be an average of 38 hours per week Monday to Friday inclusive, spread over a period of four weeks
…
25.2 Spread of hours
(a) Ordinary hours will be worked between 6.00 am and 5.30 pm until 1 July 2016 and thereafter between 7.00 am and 5.30 pm. The spread of hours may be considered during Renegotiation of Agreement (clause 7).
(b) The spread of hours may be altered by up to one hour at either end of the spread, by agreement between the Employer and the majority of employees concerned or between the employee and the Employer.
…
27. Overtime and penalty rates
27.1 Payment for overtime
All time worked by an employee in excess of or outside the ordinary hours of work prescribed by this Agreement will be paid at the rate of time and a half for the first two hours and double time after that.
…
28. Shiftwork
28.1 Definitions
(a)Early morning shift means a shift commencing between 2.00 am and 6.00 am until 1 July 2016 and thereafter between 2.00 am and 7.00
(b) Afternoon shift means a shift finishing after 6.00 pm and at or before midnight.
(c) Night shift means a shift finishing after midnight and at or before 8.30 am.
(d) By agreement between the Employer and the majority of employees in the workplace or a section or sections of it, the span of hours over which afternoon shift may be worked may be altered by up to one hour at either end of the span.
…
28.4 Shift allowances
(a)An employee while on early morning shift will be paid for such shift 12.5% more than the employee’s ordinary rate.
(b)An employee while on afternoon shift will be paid for such shift 15% more than the employee's ordinary rate.
(c)An employee while on night shift will be paid for such shift 30% more than the employee's ordinary rate.
(d)Employees required to work ordinary shifts on a public holiday will be paid in accordance with clause 27.5(c), instead of their shift penalty
…
The 2017 Agreement relevantly provided:
25. Hours of work
25.1 Ordinary hours of work--day workers
(a) The ordinary hours of work will be an average of 38 hours per week Monday to Friday inclusive, spread over a period of four weeks.
…
25.2 Spread of hours
(a) Ordinary hours will be worked between 7.00 am and 5.30 pm.
(b) The spread of hours may be altered by up to one hour at either end of the spread, by agreement between the Employer and the majority of employees concerned or between the employee and the Employer.
…
27. Overtime and penalty rates
27.1 Payment for overtime
All time worked by an employee in excess of or outside the ordinary hours of work prescribed by this Agreement will be paid at the rate of time and a half for the first two hours and double time after that.
…
28. Shiftwork
28.1 Definitions
(a)Early morning shift means a shift commencing between 2.00 am and 7.00 am.
(b)Afternoon shift means a shift finishing after 6.00 pm and at or before midnight.
(c)Night shift means a shift finishing after midnight and at or before 8.30 am.
(d)By agreement between the Employer and the majority of employees in the workplace or a section or sections of it, the span of hours over which afternoon shift may be worked may be altered by up to one hour at either end of the span.
…
28.4 Shift allowances
(a)An employee while on early morning shift will be paid for such shift 12.5% more than the employee’s ordinary rate.
(b)An employee while on afternoon shift will be paid for such shift 15% more than the employee's ordinary rate.
(c)An employee while on night shift will be paid for such shift 30% more than the employee's ordinary rate.
(d)Employees required to work ordinary shifts on a public holiday will be paid in accordance with clause 27.5(c), instead of their shift penalty
…
Clause 29.3 of the 2015 Agreement and cl.32.3 of the 2017 Agreement provided:
… Annual leave
…
… Definition of shiftworker
(a)For the purpose of the additional week of annual leave provided for in s.87(1)(b) of the Act, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays.
(b)Where an employee with 12 months' continuous service is engaged for part of the 12 month period as a seven day shiftworker, that employee must have their annual leave increased by half a day for each month the employee is continuously engaged as a seven day shiftworker.
APPLICANT’S EVIDENCE
Rhonda Cunningham
Rhonda Cunningham affirmed two affidavits and deposed that she worked for Symbion as a Storeworker Grade 5. She had commenced as a labour hire placement in 2016 but became a Symbion employee on 11 July 2016. As an employee of Symbion, her original shifts generally commenced at 6:00am although she also commenced at 4:00am or 5:00am if it was likely to be busy. She identified her contract of employment dated 8 July 2016 and agreed that it specified her work hours to be 6:00am to 2:30pm.
Annexures RC-3 and RC-4 to Ms Cunningham’s first affidavit were records of toolbox meetings on 16 August 2016 and 23 August 2017 which she acknowledged bore her signature. In relation to the first meeting, Ms Cunningham deposed that Wade Gudgeon, her supervisor, had asked to speak to her, “amongst a group of workers”. In that meeting he said:
Would you like to start at 6:00am? If you would like to start at 6:00am, please sign here. We would like you to set up Assembly and Restock, so that workers can come in and work straight away.
Annexure RC-3, the record of the 16 August 2016 toolbox meeting, described the topic of that meeting as:
Agreement to commence work at 6am, as part of their normal shift.
Ms Cunningham recalled signing a document on the basis of the conversation with Mr Gudgeon and believed that Annexure RC-3 was a copy of that document. In addition to Ms Cunningham’s signature, the meeting’s record also bears the signatures of 9 other persons. Ms Cunningham said that by starting work at the earlier time:
… we would have totes on the line, ready for them, so that people who started at 7:00am could start picking straight away.
I interpolate here that by that time the effect of the 2015 Agreement was that ordinary time hours, which had previously commenced at 6:00am, now commenced at 7:00am. Ms Cunningham stated:
… the offer to work at the earlier time … were [sic] made by Wade on behalf of Symbion and was framed with reference to Symbion's operating requirements. It did not make any difference to my commitments outside of work whether I worked this shift or not and my own individual requirements were not discussed as part of this change.
She also said that in discussions she had with a Symbion manager, Brett Hamilton, in relation to starting work early, nothing was said about extra payments but when she raised them as an issue was told that backpay of the shift allowance was “complicated”. Later, they were told that they would not receive any shift allowance because they had all “signed a piece of paper at a toolbox meeting to say we would start at 6:00am”.
Ms Cunningham deposed that although she recalled the 16 August 2016 meeting, she did not recall the one on 23 August 2017. Annexure RC-4, the record of that toolbox meeting, described its topic as:
Agreement to commence work at 6am, as part of their normal shift.
Ms Cunningham did not recall having signed that document but, as already recorded, did depose to recognising her signature on it. Her signature was accompanied by the signatures of 9 other people.
Ms Cunningham agreed that in September 2019 she had changed her normal hours (from 6.00am to 2.30pm) to 5:00am to 1:30pm and said that immediately before that change was implemented she was approached by the Operations Manager, Joshua, who said:
If you open up for us, you will paid an additional half an hour to open up and you will be entitled to early morning shift allowance.
Richard Valeri
The UWU filed two affidavits of Richard Valeri. Mr Valeri deposed that he worked for Symbion as a storeworker and forklift driver at Yennora and was classified as a Storeworker Grade 4. The work that Mr Valeri carried out was predominantly picking and forklift driving.
After initially working as a labour hire placement, Mr Valeri commenced direct employment with Symbion in June 2016, working from noon to 8:00pm. After a few weeks and at his request, he was moved to a 6:00am start. Relevantly, his contract of employment dated 6 June 2016 said:
…
Employment Conditions and Wages
Your employment is governed by the Onelink and National Union of Workers Enterprise Agreement 2015, although this Agreement does not form part of this contract of employment.
Your hours of work are 40 hours per week. It is expected that you will be able to work varied rosters, to suit the organisation's scheduling requirements.
Initially your hours of work will be commencing at 6:00am and finishing at 14:30pm from Monday to Friday each week
…
In or around early August 2016, Mr Gudgeon approached Mr Valeri and asked if he might want to start shifts at 5:00am in order to earn overtime. Mr Valeri was asked to undertake pre-checks of the forklifts and pallet riders which meant employees who started at 6:00am could use this equipment as soon as they arrived at work.
Mr Valeri deposed that after being in this role for eight weeks, he was instructed by Mr Gudgeon that the pre-checks were no longer necessary but he should continue to start work at 5:00am, which would be his new start time, and finish at 1:30pm. He said that from that point he was not paid overtime for starting before 6:00am but was instead paid overtime if he worked after 1:30pm. However, according to a detailed record of his hours worked which was annexed to his affidavit, Mr Valeri’s finish time of 2.30pm did not change from the commencement of his employment until June 2018, when it changed to 1.30pm.
Mr Valeri deposed that he was not paid an early morning shift allowance between mid-August 2016 and mid-December 2018. However, in or around January 2019, he started to receive a payment labelled “Onelink Early Shift 12.5%”, which he continued to be paid when working early morning shifts, and also a separate individual payment for 916.02 hours of early shift allowance.
Stephanie Roger
The UWU filed the affidavit of Stephanie Roger, a UWU Industrial Officer, which annexed copies of the Enterprise Agreements and a copy of the 2010 Award as it was at the time the 2015 Enterprise Agreement was approved, obtained from the website of the Fair Work Ombudsman. Also annexed to Ms Roger’s affidavit was pre-litigation correspondence between a UWU organiser and Symbion in respect of the alleged breaches of the Enterprise Agreements.
RESPONDENT’S EVIDENCE
Simon Bunde
Simon Bunde was the Executive General Manager - Strategic Operations, ESG & Innovation of EAHPL Pty Ltd a subsidiary, together with Symbion, of EBOS Group Limited. Mr Bunde was responsible for the Onelink operation at Yennora and he signed the Enterprise Agreements.
Mr Bunde deposed that most tasks at Yennora were performed during the day, without the need for employees to work overnight or on weekends on a regular basis. He said:
The Yennora Site has never operated under a shift roster. A shift roster has never been required to be issued, as the employees at the Yennora Site work consistent and predictable hours. When an employee finishes their hours of work, there is typically not any handover to another employee. Each employee would finish their work and their tasks, and would not hand them over to another employee.
He described the start times of the various teams working at Yennora, almost all of whom started no earlier than 6:00am. The exception was a small group of experienced and responsible employees who started earlier.
Mr Bunde responded to Ms Cunningham’s first affidavit deposing that, based on his analysis of pay records, the times she was asked by Mr Gudgeon to start work at 4:00am or 5:00 am were occasions of early morning overtime, which were paid as such, and that after that overtime she went on to work her normal hours for that day. Ms Cunningham’s hours remained 6:00am to 2:30pm despite her occasional early overtime work.
Consistently with a change in her normal hours to 5:00am to 1:30pm in September 2019, Ms Cunningham began receiving early morning shift allowance at that point and continued to receive it. She was also paid overtime for any additional hours worked.
Mr Bunde also responded to Mr Valeri’s affidavit saying that in 2016 Mr Valeri’s hours had been 6:00am to 2:30pm and that he had been paid overtime rates for work before 6:00am. He further said that Mr Valeri’s chronology of events was incorrect in that his 6:00am to 2:30 pm work hours did not change to 5:00am to 1:30pm until about 15 June 2018, from which point he was paid an early morning shift allowance.
SUBMISSIONS
Applicant
First question
UWU submitted that the first question should be answered “No”, an employee did not have to be a shiftworker to be eligible for the shift allowance under cl.28.4 of the Enterprise Agreements, and that the only eligibility requirement for an early morning shift allowance was that an employee work within the prescribed hours of an early morning shift.
The union submitted that:
A “shift” should be understood as a portion of a day that is scheduled as a day of work for an employee or employees, when an operation operates beyond hours set for day work or within a span of hours for day work that encompasses more than one such “period.”
Referring to Dunford v Allen Taylor and Co Ltd (1990) 34 IR 423, the UWU argued that there was no reason to treat ordinary hours of work as distinct from a shift and that the proper construction of the Enterprise Agreements demonstrated that an employee’s pay should be determined by when they worked on any particular day, not by whether they were formally designated as shiftworkers. The union argued that any distinction between “shiftworkers” and “day workers” was artificial and submitted that the reference in cl.28.2 to “day shift employees” provided textual support for a finding that neither of the Enterprise Agreements provided for a meaningful distinction between “shiftworkers” and “day workers.”
Second question
The UWU submitted that as the first question should be answered “No”, it was unnecessary to answer the second question but should the first question be answered “Yes”, Ms Cunningham and Mr Valeri had nevertheless been shiftworkers and entitled to be paid the early morning shift allowance. The union submitted that whether Ms Cunningham and Mr Valeri were shiftworkers was a question of fact rather than of contract and it argued that the consistency, regularity and uniformity of work performed by them outside usual ordinary work hours supported a finding that they worked on shifts that commenced prior to 7:00am and were therefore shiftworkers.
It was further argued by the UWU that the terms of the employment contracts did not support a finding that Ms Cunningham and Mr Valeri had been engaged as day workers. It submitted that Mr Valeri’s contract expressly stated that his hours of work would “initially” be from 6:00am to 2:30pm and that he would be expected to work varied rosters to suit Symbion’s scheduling requirements, suggesting that work hours were subject to change. It was further submitted that the fact that in July 2016 Ms Cunningham and Mr Valeri regularly started work at 6:00am, although the Enterprise Agreements provided that ordinary hours started at 7:00am and no agreement had been reached varying those hours, indicated that their ordinary hours were outside the spread of day shift hours but within the spread of early morning shift hours, and that hence they were early morning shift workers.
Respondent
First question
Symbion submitted that the first question should be answered “Yes”, an employee did have to be a shiftworker in order to be eligible for the early morning shift allowance under cl 28.4 of the Enterprise Agreements.
Symbion argued that although the Enterprise Agreements did not explicitly define “shiftworker”, on a proper construction they supported the notion that day workers and shiftworkers were distinct roles and that an employee had to work the relevant hours and be employed as a shiftworker under the Enterprise Agreements to be entitled to the early morning shift allowance.
It argued that although the Enterprise Agreements did not define the term shiftworker except in relation the annual leave entitlements of a particular group of shiftworkers, the existence of such a provision indicated that the agreements nevertheless recognised a distinction between the two sorts of employee. It further argued that the existence of that distinction was also apparent from the fact that the Enterprise Agreements provided for shiftworkers’ hours of work in a way that was quite different from what was provided for employees who worked ordinary hours during the day.
Symbion submitted that its argument did not turn on the nomenclature of the employees but the role they were employed to perform. That is to say, an employee would be a shiftworker and entitled to shift loadings if employed to work on shifts, not because they were designated in some formal way as a shiftworker or even because they worked hours that fell within one or other of the shifts described in the Enterprise Agreements.
It was further argued that the distinction between these two classes of employees was reflected in cl.25.2 of the Enterprise Agreements which allowed Symbion to change the span of ordinary work hours. The effect of this clause was if an employee had their work hours changed and ended up starting work earlier, such that their working hours fell within the parameters of the early morning shift allowance, that did not change their employee status and only entitled them to be paid overtime.
Second question
Symbion submitted that the answer to the second question should be that Members such as Ms Cunningham and Mr Valeri were employed as day workers, not shiftworkers.
Citing Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165, Symbion submitted that an employee’s classification was to be determined by the terms on which they were employed and argued that the terms of Ms Cunningham and Mr Valeri’s contracts demonstrated that they had been employed as day workers and not shiftworkers. Symbion referred to Mr Valeri’s employment contract of 6 June 2016 which stated that his hours of work were between 6:00am and 2:30pm and highlighted the absence of any reference to him being engaged, employed or required to work shifts or perform any sort of shift work.
Reference was also made to cl.28.2 of the Enterprise Agreements which prevented Symbion from requiring day workers to work the afternoon shift. Symbion submitted that this was textual evidence of day workers being distinct from shiftworkers. Furthermore, Symbion submitted that if the UWU’s arguments were to be accepted and the employees were considered to be working the early morning shift because they started work before 6:00am, it meant that they lost the protection of cl.28.2 which would be a surprising result, particularly in circumstances where that consequence was not mentioned in the employees’ contracts of employment.
It was further put that if the Court accepted that there were two sorts of employees, day workers and shiftworkers, and that Ms Cunningham and Mr Valeri had been recruited as day workers, the absence of any argument by the UWU that there had been a variation in their employment contracts to effect a change to shift work was notable.
Moreover, Symbion argued that to the extent that the Members started work before their ordinary hours of work, the period that they worked was understood to have attracted overtime, not the early morning shift allowance.
Symbion’s explanation of Ms Cunningham and Mr Valeri’s situation was that cls.25.2(a) and (b) of the Enterprise Agreements provided for ordinary hours to be altered by up to an hour such that it could be agreed that prior to 1 July 2016 ordinary hours commenced at 5:00am rather than 6:00am and subsequently that ordinary hours commenced at 6:00am rather than 7:00am with the effect that overtime would not be payable under cl.27.1 of the Agreements for work between 5:00am and 6:00am up to 1 July 2016 and between 6:00am and 7:00am from 1 July 2016. Symbion argued that to the extent that the employees started work before their ordinary hours of work, the period that they worked was properly understood to have been overtime for which they were entitled to overtime pay, not work on the early morning shift attracting a shift allowance.
CONSIDERATION
Principles of construction
The following statement of the principles relevant and applicable to the interpretation of an enterprise agreement has been endorsed by the Full Court of the Federal Court in Avard v Australian Capital Territory [2025] FCAFC 72 at [44]:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context …
(ii)A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” … The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” …
(iii)Context is not confined to the words of the instrument surrounding the expression to be construed … It may extend to “ … the entire document of which it is a part, or to other documents with which there is an association” ...
(iv)Context may include “ … ideas that gave rise to an expression in a document from which it has been taken” …
(v)Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form …” …
(vi)A generous construction is preferred over a strictly literal approach … but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” …
(vii)Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry … (references omitted)
James Cook University v Ridd (2020) 278 FCR 566 at 580-581 [65] per Griffiths and SC Derrington JJ)
I shall apply those principles in construing the Enterprise Agreements.
Findings of fact
The 2015 Agreement stated that until 1 July 2016 the spread of ordinary hours of work for “day workers” would be 6:00am to 5:30 pm, after which it would be 7:00am to 5:30pm. The 2017 Agreement continued the latter hours into its period of operation.
Ms Cunningham’s employment as a storeperson with Symbion commenced in July 2016 at which time she entered into a contract of employment which provided that her hours of work would be 6:00am to 2:30pm. I should observe at this point that Ms Cunningham’s contract of employment was not formally adduced into evidence although it was included in a court book prepared by the UWU and was cross-examined-upon. After entering into her contract, Ms Cunningham agreed at a toolbox meeting held on 16 August 2016, that is after the 2015 Agreement’s change in the spread of hours had taken effect, that her ordinary hours would commence at 6:00am. I find that she made a similar agreement at a toolbox meeting on 23 August 2017, perhaps to take account of the 2017 Agreement having replaced the 2015 Agreement. I accept Mr Bunde’s evidence that prior to September 2019 Ms Cunningham occasionally started work at 4:00am or 5:00 am, for which she was paid overtime, and that in September 2019 her normal start time moved forward to 5:00am, from which point she was paid the early morning shift allowance.
Mr Valeri’s employment as a storeperson with Symbion commenced in June 2016 at which time he entered into a contract of employment which provided that his hours of work would be 6:00am to 2:30pm. In August 2016 he agreed to Mr Gudgeon’s request that he start work at 5:00am. Mr Valeri’s evidence was that 8 weeks later his normal start time was moved to 5:00am with a finish time of 1:30 but Mr Bunde’s evidence was that this in fact occurred in June 2018. Mr Bunde explains by reference to a letter dated 16 January 2020 why the later date is the correct one and I accept that explanation as likely to be accurate. Mr Valeri’s recollection was unsupported by similar corroborative detail. From June 2018 Mr Valeri was paid, albeit after some delay, the early morning shift allowance.
I note that Symbion does not admit that it had been obliged to pay Ms Cunningham and Mr Valeri the early morning shift allowance when their normal work hours were moved forward to commence at 5:00am.
First question
Paraphrased, the first question is whether a Symbion employee had to be a “shiftworker” (as opposed to a “day worker” to be eligible to be paid a shift allowance under cl.28.4 of the Enterprise Agreements.
The Enterprise Agreements contain no definition of shiftworker relevant to the present issue. They do make special provision for the annual leave entitlements of employees who met the definition of shiftworker quoted earlier, namely:
…a shiftworker is a seven day shiftworker who is rostered to work on Sundays and public holidays.
but it is apparent from a comparison of the documents that that definition and its related special annual leave entitlement clause are derived from the Award and are not peculiar to the Enterprise Agreements. Significantly, it was not suggested that any of the Employees met that definition and the evidence does not suggest that the remainder of Symbion’s employees would have been likely to do so. That definition seems likely to have been included in the Enterprise Agreements to echo the Award, rather than because it was relevant to Symbion or its employees. It is not of great significance in deciding the first question, although it does recognise the existence of a distinct group of employees, even if only hypothetically, who would be understood to be shiftworkers.
Of more relevance are the Enterprise Agreements’ provisions for the working hours of shiftworkers and day workers. The existence of a distinction between those employees is apparent when considering the Enterprise Agreements’ provisions concerning the hours of work and the spread of hours. As quoted earlier, the hours of work of employees who did not work any of the shifts were prescribed in the Enterprise Agreements as follows:
25. Hours of work
25.1 Ordinary hours of work-day workers
(a)The ordinary hours of work will be an average of 38 hours per week Monday to Friday inclusive, spread over a period of four weeks
…
25.2 Spread of hours
(a) Ordinary hours will be worked between 6.00 am and 5.30 pm until 1 July 2016 and thereafter between 7.00 am and 5.30 pm. The spread of hours may be considered during Renegotiation of Agreement (clause 7).
(b) The spread of hours may be altered by up to one hour at either end of the spread, by agreement between the Employer and the majority of employees concerned or between the employee and the Employer.
By contrast, both Agreements provided in relation to employees who worked the early morning, afternoon or night shifts:
28.3 Hours of work
(a)The ordinary hours of work of shiftworkers will average 38 per week as provided in clause 25.1 and must not exceed 152 in any work cycle; and
(b)except as provided in clause 28.3(c) will not exceed:
(i) eight hours in one day;
(ii) 38 hours in any one week;
(iii) 76 hours in any 14 consecutive days;
(iv) 114 hours in any 21 consecutive days; or
(v) 152 hours in any 28 consecutive days.
(c)The ordinary hours for shift employees may be worked between Monday and four or five days of not more than eight hours (Monday to Friday inclusive) each continuously, except for meal breaks, at the discretion of the Employer. An employee may work up to 10 ordinary hours in a day, subject to agreement between the Employer and the majority of employees in the workplace or a between the Employer and the majority of employees in the workplace or a section or sections of it. The days on which ordinary hours are worked may include Saturday and Sunday subject to agreement between the Employer and the majority of employees in the workplace or a section or sections of it.
…
Notice should also be taken of cl.28.2 of the Enterprise Agreements which stated:
28.2 No requirement to work shift
Employees employed as day shift employees must not be required to work afternoon shift in the absence of the employee's specific agreement. Afternoon shift will be worked by the employees engaged specifically for this purpose, or by volunteers from day shift. Employees must not be discriminated against in any way for not volunteering to work a particular shift.
That sub-clause serves to entrench a distinction between day workers, who could not be required to work afternoon shifts, and afternoon shiftworkers who were specifically allocated to that particular role. In circumstances where neither Enterprise Agreement contains definitions of day shift or day shift employees, I conclude that the latter expression was not one of art but of convenience for the drafter and means no more than employees working the ordinary hours stipulated in cl.25.2 of the agreements. In that regard, even though the idea of shift work involving workers timing the start of their work with the conclusion of others’ work hours and then handing off at the end of their work to still other workers in a constant relay is familiar to all, the meaning of the word “shift” is not limited to such operations. It can also be used in a more colloquial way to signify different rostering arrangements in the same enterprise or undertaking, which is what appears to be the sense in which it is used in the Enterprise Agreements.
It is apparent from cls.25 and 28 just quoted that under the Enterprise Agreements there was a practical distinction between day workers and shiftworkers. It is also apparent from the structure of the Enterprise Agreements, and from their content, that the standard working day at Symbion was the one that did not attract any loadings or penalties, namely the period described as “ordinary hours of work – day workers”. A variation on that standard was provided in relation to “shiftwork” whose ordinary hours attracted additional pay. Overtime applied to both in that it was payable for:
All time worked by an employee in excess of or outside the ordinary hours of work prescribed by this Agreement …
As a final point I observe that cls.25.1 and 28.3 provided for the hours of work of day workers and of shiftworkers in such a way that an employee could be one or the other but not both at once, which points to those roles being akin to substantive classifications of a sort.
For these reasons I conclude that the Enterprise Agreements contemplated two types of workers, day workers, whose hours of work, subject to agreed amendment by an hour, were between the spread of ordinary hours, and shiftworkers, who worked the shifts identified in the agreements. Consequently, the first question should be answered “Yes”.
Second question
Given the answer to the first question, it is necessary to consider the second question, which is whether between 15 September 2016 and 19 March 2020 Ms Cunningham and Mr Valeri were shiftworkers or day workers.
In CFMMEU v Personnel Contracting it was held that the principles governing the interpretation of a wholly written contract of employment are no different from those that govern the interpretation of contracts generally and that subsequent conduct is irrelevant to that consideration. In this case Ms Cunningham and Mr Valeri’s relationships with Symbion were governed by their contracts, as affected by the Enterprise Agreements and by the FW Act. Those contracts both stated:
Employment Conditions and Wages
Your employment is governed by the Onelink and National Union of Workers Enterprise Agreement 2015, although this Agreement does not form part of this contract of employment.
Your hours of work are 40 hours per week. It is expected that you will be able to work varied rosters, to suit the organisation's scheduling requirements.
Initially your hours of work will be commencing at 6:00am and finishing at 14:30pm from Monday to Friday each week.
Mr Valeri’s employment commenced on 6 June 2016 and Ms Cunningham’s on 11 July 2016. I infer that the contracts were in a standard form and that the form had not been updated in Ms Cunningham’s case to take account of the change in the spread of ordinary time hours that took place on 1 July 2016. Neither of the contracts makes any reference to shift work and were instead based on the spread of ordinary hours that had originally applied at the Yennora warehouse from at least the June 2015 commencement of the 2015 Agreement. After 1 July 2016, that situation was maintained in Ms Cunningham’s case by the toolbox meeting agreements and in Mr Valeri’s case by his individual agreement with Mr Gudgeon. The maintenance of 6:00am to 2:30pm as the amended hours of Ms Cunningham and Mr Valeri’s normal work day continued until Mr Valeri’s normal start time was moved in June 2018 to 5:00am, when he started to knock off at 1:30pm rather than 2:30pm and be paid the early shift allowance, and until September 2019 when Ms Cunningham’s normal start time was moved forward to 5:00am, and she started to knock off at 1:30pm rather than 2:30pm and be paid the early morning shift allowance.
These matters persuade me that Ms Cunningham and Mr Valeri were both employed as day workers and that it was not until much later that their hours changed such that they were treated, apparently without admission, as early morning shift workers.
CONCLUSION
The answer to the first question is “Yes” and the answer to the second question is “Day worker”.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 30 June 2025
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