Waternish Constructions Pty Ltd

[2012] FWA 8953

[2012] FWA 8953

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Waternish Constructions Pty Ltd
(AG2012/11006)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 OCTOBER 2012

Waternish Constructions Pty Ltd Enterprise Agreement 2012 - application for approval - better off overall test - shiftwork - undertaking invited.

[1] On 14 September 2012 Waternish Constructions Pty Ltd (Waternish) lodged an application for approval of the Waternish Constructions Pty Ltd Enterprise Agreement 2012 (the Agreement). The Agreement was reached between Waternish and its employees. There was no nominated employee bargaining representative. The application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act).

[2] On 21 September 2012 I issued Preliminary Findings in which I sought clarification about shiftwork arrangements under the Agreement. Waternish provided a written response to those findings. The application was the subject of telephone conferences on 2 and 9 October 2012. At these conferences I expressed concern over the application of the Better Off Overall Test (the BOOT) to shiftwork which might occur under the Agreement. Following both of these conferences Waternish has provided written advices detailing its position and the pattern of working arrangements it has applied in the past so as to support its contention that Fair Work Australia (FWA) should be satisfied that the Agreement met the BOOT.

[3] Waternish has, to date, declined to offer an undertaking to address the shiftwork arrangements under the Agreement.

[4] This decision sets out my conclusions with respect to this issue.

[5] I accept Waternish’s advice that it undertakes civil contracting work. The relevant Modern Award for the purposes of the BOOT is the Building and Construction General On-site Award 2010 (the Award). The Agreement replaces all of the Award provisions. It adopts the National Employment Standards relative to a number of leave entitlements. It provides for wage rates which exceed the Award minima.

[6] In terms of shiftwork the Agreement provides as follows:

“CLAUSE 15: SHIFT WORK

15.1 Employees may have to work shift work.

15.2 An afternoon shift is any shift where ordinary hours commence at or after 12.00pm and before 8.00pm. A night shift is a shift where ordinary hours commence at or after 8.00pm and before 6.00am.

15.3 If the Company requires an employee to work shift work, Monday to Friday, a shift loading of 15% will be paid for ordinary hours in an afternoon shift, and 30% for ordinary hours in a night shift. Shift work on weekends will be paid as if it were weekend work.

15.4 A “shift worker” for the purpose of the NES is a person who is regularly rostered to work ordinary hours on Saturdays and Sundays.”

[7] In contrast, the Award deals with shiftwork in the civil construction sector in the following terms:

34.2 Civil construction sector

(a) Definitions

For the purpose of this clause:

shiftwork means any system of work in which operations are being continued by the employment of a group of employees upon work on which another group had been engaged previously

day shift means any shift starting on or after 6.00 am and before 10.00 am

afternoon shift means any shift starting at or after 10.00 am and before 8.00 pm

night shift means any shift starting at or after 8.00 pm and before 6.00 am

rostered shift means a shift of which the employee concerned has had at least 48 hours notice.

(b) Roster

Shifts must be worked according to a roster which will:

(i) provide for rotation of shifts unless all the employees concerned agree otherwise;

(ii) provide for not more than eight shifts to be worked in any nine consecutive days; and

(iii) specify the commencing and finishing times of each shift.

(c) Ordinary hours

(i) The ordinary hours of work for shiftworkers will not exceed an average of 38 per week over a cycle of two, three or four weeks.

(ii) A shift will consist of not more than eight consecutive hours inclusive of a crib time of 30 minutes which will be counted as time worked.

(d) Rostered off shift

Twenty-four minutes of each eight hour shift worked during a shift cycle will accrue as an entitlement to take a rostered off shift after each 19 shifts worked. The rostered off shift will be paid for as though worked.

(e) Paid leave

Each day of paid leave taken and any public holiday occurring during any shift cycle will be regarded as a shift worked for accrual purposes.

(f) Pro rata accrued entitlements

A shiftworker who has not worked or is not regarded by reason of clause 34.2(e) as having worked a complete shift cycle will receive pro rata accrued entitlements for each shift worked or regarded as having been worked in that cycle. Such pro rata entitlements will be payable for the rostered off shift or, in the case of termination of employment, on such termination.

(g) Taking of rostered off shifts

The employer and employees concerned will agree in writing upon arrangements for the taking of rostered off shifts or for their accumulation. Such accumulation will be limited to not more than five shifts before they are taken as rostered off shifts. When rostered off shifts are taken they will be regarded as shifts worked for accrual purposes in the particular shift cycle in which they are taken.

(h) Work on a rostered off shift

The rostered off shift prescribed by this clause will be taken as a paid shift off. Provided that where an employer for emergency reasons requires an employee to work on their rostered off shift the employee will, in addition to their accrued entitlements, be paid at overtime rates for all work performed on the rostered off shift.

(i) Overtime

All time worked by a shiftworker in excess of or outside the ordinary hours (inclusive of time worked for accrual purposes), or on a shift other than a rostered shift, must be paid for at the rate of double time. Provided that this will not apply when the overtime is worked by arrangements between the employees themselves or for the purpose of effecting the customary rotation of shifts.

(j) Shift allowances

A shiftworker whilst on afternoon or night shift other than on a Saturday, Sunday or holiday must be paid their ordinary rate plus 15%.

(k) Saturdays

Employees working shifts between midnight on Friday and midnight on Saturday must be paid at the minimum rate of time and a half for ordinary hours of work inclusive of time worked for accrual purposes as prescribed in clause 34.2(e).

(l) Sundays and holidays

Subject to this clause, the provisions of clause 41—Public holidays, will apply to shiftworkers. Where shifts commence between 11.00 pm and midnight on a Sunday or holiday, the time so worked before midnight will not entitle the employee to the Sunday or holiday rate; provided that the time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or holiday and extending into a Sunday or holiday will be regarded as time worked on such Sunday or holiday. Where shifts fall partly on a Sunday or a holiday that shift, the major portion of which falls on a Sunday or a holiday, will be regarded as the Sunday or holiday shift.

(m) Five successive shifts

Shiftworkers who work on any afternoon or night shift which does not continue for at least five successive afternoons or nights will be paid at the rate of time and a half for all ordinary time occurring during such shift.

(n) Permanent night shift

An employee who (except at their own request pursuant to clause 34.2(b)(i)):

(i) during a period of engagement on shift, works night shift only; or

(ii) remains on a night shift for a longer period than four successive weeks; or

(iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give the employee at least one third of their working time off night shift in each cycle;

must, during such engagement, period or cycle be paid their ordinary rate plus 30% for all time worked during ordinary working hours on such night shift.

(o) Call outs

A shiftworker called out to work after the expiration of their customary working time and after they have left work for the shift, or is called out to work on a day on which they are rostered off, must be paid for a minimum of three hours work calculated at double the ordinary prescribed rate for each time the shiftworker is called out. Provided that if called out on a public holiday, payment must be calculated at the rate prescribed in clause 37.9 of this award.

(p) Transport after overtime

When a shiftworker, after having worked overtime or a shift for which they have not been regularly rostered, finishes work at a time when reasonable means of transport are not available, the employer will provide the shiftworker with transport to their usual place of residence or to the nearest appropriate public transport.”

[8] The Waternish position is that:

“As noted in the hearing, shift penalties applicable to employees in the civil construction sector in the award are more or less the same as those contained in the agreement except where the shifts do not continue for a week (see clauses 34.2(j) and 34.2(m)). It is only those employees engaged in the building or metal and engineering construction sector where there may be a considerable differences in the shift loading.

We have since undertaken a review of our member’s work and work patterns. Attached is a summary of the last ten jobs performed by our member. The summary includes the work performed, including any mechanical type work. This sample is representative of the business’ ordinary work.”

[9] Waternish has provided advice, based on the work it has undertaken over the past year, to the effect that the pattern of work undertaken demonstrates that employees required to undertake shiftwork were substantially better off under the Agreement than would have been the case under the Award.

[10] I have reviewed the shiftwork provisions under both the Agreement and the Award.

• I do not consider that differences in the definition of afternoon shift and night shift are relevant in this circumstance.



• The Agreement does not require shiftwork to be rostered in the manner specified in the Award.



• The Award provides for a paid crib break of 30 minutes. The Agreement establishes this as unpaid.



• There is no substantive difference in the operation of the 38 hour week "Rostered Day" system.



• I have adopted the position that the Agreement’s adoption of the NES leave entitlements enables the Agreement provisions in this respect to be equated with the Award provisions.



• The Agreement does not provide for the taking of rostered shifts on a predetermined basis.



• Weekend penalties for shiftwork operate equally under both the Agreement and the Award.



• The Award provision that shiftwork must continue for at least five afternoons or nights or employees are to be paid at the rate of 1½ times is not replicated in the Agreement.



• The Award 1 specifies a 30% shift penalty applicable for night shift only work (apart from, by agreement) or for night shift work of more than four successive weeks or for shift arrangement which do not give employees at least one third of the working time off night shift in a given cycle. The Agreement does not address these circumstances.

The Award provides for callout payments for shift workers which are not addressed in the Agreement.

The Award provides for the provision of transport after shiftwork overtime. I do not consider that provision to be relevant to these circumstances.

[11] It is clear that a direct comparison of the Agreement and the Award shiftwork provisions establishes that the Award provision is more beneficial to employees than the Agreement provision in terms of certain payments, and penalties dependent upon shiftwork arrangements.

[12] The BOOT is addressed in s.193 of the FW Act. It requires the application of an overall test. Consequently, I have considered whether the Agreement overall represents a better employee benefit then the Award. I have particularly noted that the Agreement provides for better wage rates. For example, under the Agreement a Labourer/Operator 2 has an hourly rate of $20.86. The highest comparable Award classification3 establishes a minimum hourly rate of $18.58.

[13] Notwithstanding this, depending on the arrangement of shiftwork hours and rosters, there is the potential for employees under the Agreement to be disadvantaged. Absent any form of undertaking about how work will be arranged, the application of the BOOT requires that I consider arrangements that the Agreement permits rather than simply relying on past practices.

[14] A consideration of the works undertaken by Waternish over the past year demonstrates that, if those works were to be repeated, shiftwork arrangements could still be applied consistent with the Agreement so as to result in employee payments for those periods to be less than the Award entitlements notwithstanding the higher base wage rate.

[15] Consequently, I am not satisfied that the Agreement passes the BOOT. In all other respects I am satisfied that the requirements of ss.186, 187 and 188 of the FW Act that are relevant to approval of the Agreement have been met.

[16] I am prepared to approve the Agreement with an undertaking which deals with shiftwork. That undertaking could take a number of forms. Whilst I do not intend to be prescriptive about the form of that undertaking, one such undertaking could be: "Waternish undertakes to apply the shiftwork penalty provisions specified in clause 34.2 of the Award in the event that shiftwork is worked outside of the shift roster as provided for under clause 34.2 (b), (c), (m) and (n)".

[17] In the alternative, if an undertaking is not provided to me within seven days of the date of this decision, the application will be dismissed.

SENIOR DEPUTY PRESIDENT

 1   Clause 34.2(n)

 2   Agreement, Appendix 1

 3   Award, Classification CW1-3

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