1
Fair Work Act
2009
s.739—Dispute resolution
Construction, Forestry, Mining and Energy Union
v
Endeavour Coal Pty Ltd
(C2016/6520)
DEPUTY PRESIDENT DEAN SYDNEY, 24 MAY 2017
Application to deal with a dispute about matters arising under the enterprise agreement.
[1] On 3 November 2016 the Construction, Forestry, Mining and Energy Union (CFMEU)
filed an application pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work
Commission to deal with a dispute in accordance with clause 28 (Dispute Resolution Process)
of the Appin Colliery & West Cliff CPP Enterprise Agreement 2015 (the Agreement).
[2] The Agreement applies to Endeavour Coal Pty Ltd (Endeavour) in respect to Appin
Colliery (Appin) and the West Cliff Coal Preparation Plant (West Cliff), and its employees
employed at Appin and West Cliff within the classifications set out in the Agreement. The
nominal expiry date of the Agreement is 20 July 2018.
[3] The question I need to determine is whether the Agreement requires Endeavour to pay
a shift loading in addition to public holiday penalties to employees covered by the Agreement
who perform shift work on a public holiday. The resolution of the dispute therefore turns
upon the interpretation of particular provisions in the Agreement.
[4] In doing so, I have had regard to the principles applicable to the construction of an
enterprise agreement which were canvassed in detail in Australasian Meat Industry
Employees Union v Golden Cockerel Pty Ltd (Golden Cockerel)1.
[5] For the reasons set out below, I find that the answer to the question above is no, the
Agreement does not require Endeavour to pay a shift loading in addition to public holiday
penalties to employees who work on a public holiday.
Background
[6] Historically, separate enterprise agreements applied to Appin and West Cliff.
Following the amalgamation of the operations at West Cliff and Appin, the current
Agreement, covering both sites, was made.
[2017] FWC 1763 [Note: An appeal pursuant to s.604 (C2017/3169) was
lodged against this decision.][Note: This decision has been quashed - refer
to Full Bench decision dated 31 August 2017 [[2017] FWCFB 4487]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4487.htm
[2017] FWC 1763
2
[7] It was not disputed that historically, employees at West Cliff were not paid shift
allowances in addition to the public holiday penalties for work on a public holiday, and Appin
employees were paid the shift allowances in addition to the public holiday penalty rates.
There was disagreement between the parties as to why this payment was made.
[8] It was also not contested that Endeavour had been paying both public holiday penalty
rates and shift allowances for work on a public holiday at the commencement of the
Agreement, however it had since ceased that practice, which gave rise to the current dispute.
[9] The hearing took place on 1 March 2017, with Mr A Thomas appearing on behalf of
the CFMEU, and Mr Rauf of Counsel appearing on behalf of Endeavour.
Relevant provisions of the Agreement
[10] The following clauses of the Agreement are relevant to the current dispute.
[11] Clause 7.2 of the Agreement provides:
7.2 Payment of Shift Allowances and for Ordinary hours worked on a
weekend
The payments for shift allowances and ordinary hours worked on a weekend
are set out in Appendix 3 – Payment Rules. The weekend penalties apply from
midnight to midnight on each of the weekend days.
[12] Clause 16.4 of the Agreement provides:
16.4 Payment for Recognised Public Holidays
Payment for Public Holidays is set out in Appendix 3 – Payment Rules.
Weekend roster Employees, will be paid for all recognised Public Holidays
whether or not they form part of their roster.
[13] Appendix 3 of the Agreement provides:
APPENDIX 3 – PAYMENT RULES
Component Payment Rule
Ordinary hours
Ordinary hours worked Monday to Friday inclusive are paid
at the Employee’s Classification rate.
Ordinary hours worked on Saturday are paid at 1.5 times the
Employee’s Classification rate for the first 4 hours and 2
times thereafter.
Ordinary hours worked on Sunday are paid at 2 times the
Employee’s Classification rate.
Rostered Overtime All rostered overtime is paid at 2 times the Employee’s
Classification rate.
Non rostered overtime worked Monday to Saturday inclusive
is paid at 1.5 times the Employee’s Classification rate for the
[2017] FWC 1763
3
Non Rostered Overtime
weekday roster Employees
first 3 hours and 2 times thereafter.
Non rostered overtime worked on Sunday is paid at 2 times
the Employee’s Classification rate.
Non-rostered overtime for
Employees who work a
weekend roster or a roster
incorporating Saturday and
Sunday
All non-rostered overtime is paid at 2 times the Employee’s
Classification rate.
Afternoon Shift Allowance 15% for ordinary hours at the Employee’s Classification rate.
Night Shift Allowance 25% for ordinary hours at the Employee’s Classification rate.
Casual Loading 25% for hours worked at the Employee’s Classification rate.
No 10 Hour Break between
work on successive days
Where an Employee works overtime, other than rostered
overtime, and is required to have a 10 hour break between the
end of that overtime and the start of the Employee’s ordinary
hours of work on the next day there will be no loss of pay for
ordinary hours of work which occur during this absence.
Where the Company instructs an Employee to resume work,
not having had 10 consecutive hours off work, the Employee
will be paid at 2 times the Classification rate during ordinary
hours and thereafter until the Employee finishes work.
Public Holidays An Employee who is not required to work during a Public
Holiday will be paid for that Public Holiday at their
Classification rate per hour for their normal rostered hours
which fall during that Public Holiday.
An Employee required to work during a Public Holiday will
be paid 2 times the Classification rate for the hours worked up
to the hours calculated above in addition to the payment
provided in above. For hours worked in excess of the above,
an Employee will be paid 3 times the Classification rate.
An Employee who is not rostered to work during a Public
Holiday shall be paid 7 hours at their Classification rate.
Annual Leave Paid the greater of as if at work excluding any shift
allowance; or the Employee’s Classification rate plus 20%
leave loading for hours deducted.
Long Service Leave For each week of leave paid 1 Ordinary weeks pay and the
weekly Bonus.
Personal / Carer’s Leave Paid the hours the Employee would have worked at the
Employee’s Classification rate.
Parental Leave Paid what the Employee would have been paid if they had
been on Personal / Carers Leave.
[2017] FWC 1763
4
Compassionate Leave Paid what the Employee would have received if they had
attended work.
Community Services Leave Paid what the Employee would have received if they had
attended work less any amount received from the Court or the
Service.
Mines Rescue Training,
Medical Examination,
Annual One Day Refresher
at SMRS
Where an Employee is to attend during a rostered shift they
will be paid what the Employee would have received if they
had attended work. If an Employee attends outside of a
rostered shift then they will be paid the hours attended at the
Overtime rate.
Accident Pay - 1st 39 weeks
from date of injury, Clause
27.3 conditions met
A weekly payment representing the difference between the
weekly amounts of compensation paid to the Employee by the
WC Act and what the Employee would have received if they
had attended work in accordance with Clause 27.
Accident Pay - 1st 39 weeks
from date of injury, Clause
27.3 conditions not met
A weekly payment representing the difference between the
weekly amounts of compensation paid to the Employee by the
WC Act and the Employee’s Ordinary weeks pay and the
Weekly Bonus.
Accident Pay - 2nd 39
weeks
A weekly payment representing the difference between the
weekly amounts of compensation paid to the Employee by the
WC Act and the Employee’s Ordinary weeks pay.
Employee Rehabilitation An Employee at work on rehabilitation following a work
related injury will be paid what they would have received as
if they had attended work on the shift they were working
when the injury occurred.
Workforce Representative
approved absence from
work up to 35 person days
Bonus only, provided that the Absence Request Form
indicates the number of days that have already been paid in
the year under this Clause.
Workforce Representative
approved absence from
work after 35 person days,
or if the days taken number
is not indicated on the
Absence Request Form
Unpaid
Workforce Representative
attendance at Company
agreed meeting during
rostered shift
Paid what the Employee would have received if they had
attended work.
Workforce Representative
attendance at Company
agreed meeting outside of
rostered shift
Paid for the duration of the meeting at the non- rostered
Overtime rate.
Employee meetings Paid 1 hour at the Employee’s classification rate, to a
maximum of 4 meetings per year. A signed attendance sheet
to be provided.
The evidence led by the parties
[2017] FWC 1763
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[14] Mr Craig Fisher and Mr David MacLachlan, both employees of Endeavour at Appin,
gave evidence on behalf of the CFMEU. Mr Heath Hannigan and Mr Martin Aicken gave
evidence on behalf of Endeavour.
[15] The evidence led by both parties focused on how public holidays on weekends were
paid at each site under previously applicable agreements, and the content of the negotiations
leading up to the making of the Agreement.
[16] Both parties submitted that it was only necessary for me to consider the evidence if I
found there was ambiguity in the relevant clauses of the Agreement. Despite leading such
evidence, they both submitted that no ambiguity arose2. I agree with their submission.
[17] For the reasons set out below, I do not consider that there is ambiguity in the language
of the Agreement. Accordingly, I do not need to have regard to the evidence led by both
parties.
Matters agreed by the parties
[18] The parties accepted that:
a) the resolution of this current dispute involves a determination of the meaning
of clauses 7.2, 16.4, and Appendix 3 - Payment Rules;
b) the role of the Commission in determining this dispute is to interpret those
clauses of the Agreement;
c) it is not the role of the Commission in this matter to embark on a broader
exercise considering the underlying merits of each party’s position; and
d) the dispute resolution procedure at clause 28 of the Agreement empowers the
Commission to arbitrate this dispute.
Competing contentions
The CFMEU
[19] The CFMEU relies on the terms of the Agreement set out above to make good its case
that Endeavour is required to pay a shift loading in addition to the public holiday rate for
work performed on a public holiday3.
[20] In its submission, it said that the plain and ordinary text of the Agreement, when
considered in light of the context and purpose of the Agreement, demonstrated that the
wording was plain on its face and there was no ambiguity4.
[21] The CFMEU argued that Appendix 3 in its view was fundamental to the resolution of
the current dispute5. It submitted that the clauses within the Agreement are separate and
discrete and provided different entitlements for different reasons. In particular, it argued that
Appendix 3 provided separate and discrete payment rules for shift allowances, weekend
penalties and public holiday penalties.
[22] In its written submissions, the CFMEU contended that Appendix 3 clearly set out each
component and the corresponding payment rule, and that it was clear from the text of
[2017] FWC 1763
6
Appendix 3 that payment of a component was required once the respective payment rule had
been satisfied.
[23] It argued that the words found in Appendix 3 relating to shift allowance had a plain
and ordinary meaning. In this regard, it argued that it was the working of ordinary hours on an
afternoon shift, as defined by clause 2 of the Agreement, that satisfied the payment rules in
relation to shift allowance. It submitted that the Agreement made clear that the ordinary hours
are an average of 35 hours per week over the roster cycle, and accordingly, Appendix 3
clearly provided that shift allowance must be paid on an employee’s ordinary hours.
[24] In relation to the payment rule applicable to circumstances where an employee is
required to work on a public holiday, the CFMEU argued that it was the requirement to work
on a public holiday that satisfied the particular payment rule. In this regard, it said that
Appendix 3 clearly provided that the public holiday penalty rate must be paid when an
employee is required to work on a public holiday. It argued that there was nothing in the text
of Appendix 3, or indeed the rest of the Agreement, that supported an argument that the
payment of one component (because the relevant payment rule had been satisfied) nullifies
the payment of another component where the relevant payment rule had been satisfied.
[25] The CFMEU argued that Endeavour was wrong to submit that the components in
Appendix 3 were mutually exclusive. It also argued that the words found in Appendix 3 (the
payment rule) relating to work on a public holiday did not say that the public holiday penalty
rate was the only amount to be paid for work performed on a public holiday. It submitted that
if the mutual intention of the parties was that only the public holiday penalty rate was to be
paid, the Agreement would have expressly said so. In this regard, the CFMEU relied on a
decision of Deputy President Gostencnik in AMWU v RACV Services Pty Ltd6, to argue that
the absence of words in the Agreement which specifically stated that shift allowance was not
paid where penalty rates or overtime applied, was fatal to Endeavour’s argument that the
components in Appendix 3 were mutually exclusive or that the public holiday penalty rate
‘covers the field’.
[26] The CFMEU described its interpretation in closing oral submissions as follows:
“…if an employee works on afternoon shift or nightshift, under the Appendix, a
particular allowance applies. Generally speaking, it’s 15%, or its 25% if you work a
permanent night shift. If you work on a public holiday, the public holiday penalty
applies. It follows, in our submission, that if an employee works on afternoon or
nightshift on a public holiday, both payments apply.
That, in our submission, is both plain on a reading of the enterprise agreement and is
inherently and internally logical. At no point, does the enterprise agreement say or
even on the kindest reading permit of (sic) a payment of the public holiday penalty
only, other than if you are working on a day shift on a public holiday.”7
[27] The CFMEU argued that to understand why both rates apply, it was necessary to
understand the purpose behind the various payments. It contended that each of the payments
address different aspects of when work is performed. In this regard the CFMEU submitted
that “if an employee works on a public holiday, there is a public holiday penalty and if that so
happens to be on an afternoon shift, then it doesn’t make any difference, those hours are still
[2017] FWC 1763
7
in the afternoon, same as on a weekend. For that reason, the afternoon shift penalty would
apply and the agreement does not say otherwise.8”
[28] The CFMEU argued that the construction proposed by Endeavour led to a number of
‘inconsistencies’9, the first of those being that Endeavour had acknowledged that work
performed on a Saturday afternoon shift attracted both the Saturday penalty and the afternoon
shift penalty. It argued that a public holiday was no different, and that there were no words in
the Agreement that specifically provided that if an employee worked afternoon shift on a
Saturday they would receive both penalties.
[29] The second inconsistency, it argued, was that if one employee worked dayshift on a
public holiday and another employee worked afternoon shift on the same public holiday they
would, on Endeavour’s construction of the Agreement, receive exactly the same payment. The
CFMEU submitted that this was ‘an obvious inequity that we think that the agreement would
not logically throw up’10.
[30] In its written submissions, the CFMEU argued that Endeavour’s construction could
only succeed if the plain and ordinary meaning of the words found in Appendix 3 in relation
to afternoon and night shift were totally ignored, which would be an impermissible approach.
[31] The CFMEU contended that more than one component may be required to be paid
where the relevant payment rules were satisfied. It argued that to suggest otherwise, as
Endeavour has, would produce a result where, for example, employees working their ordinary
hours on afternoon or night shift on the weekend would only receive the weekend penalty rate
and not the relevant shift allowance on those days. It argued that such a result would be
contrary to the text of Appendix 3 and the evident purpose of a shift allowance, and this result
would significantly disadvantage employees that predominantly worked their ordinary hours
over the weekend.
[32] Under the heading of ‘Purpose’ in its written submissions, the CFMEU argued that a
penalty rate is commonly paid for work performed on a public holiday, and is recognition that
the employee has foregone the social amenity of a paid day off. It argued that there was a
material difference between working on a weekend and working on a public holiday. It argued
that the evident purpose of the Agreement in setting the public holiday penalty rate at a rate
higher than the weekend penalty rate, was to reinforce the distinction between working on
these days. In the CFMEU’s submission, it followed that the purpose of the public holiday
penalty rate was not to encompass other loadings, allowances and penalty rates that were set
out in Appendix 3.
[33] In summary, it argued that an employee working their ordinary hours on an afternoon
or nightshift on a public holiday had satisfied 2 payment rules, the first relating to shift
allowances and the second relating to work on a public holiday.
Endeavour
[34] On its part, Endeavour submitted that the Agreement is plain in its terms, that the
payment for public holidays is a standalone clause, and that it did not provide for additional
shift loadings for work performed on public holidays. It argued that a proper construction of
the public holiday clause could be contrasted with other parts of the Agreement, ‘including
[2017] FWC 1763
8
the weekend penalty rates clause and other payment rules, under which employees are entitled
to receive what they would have been paid had they attended work’11.
[35] Endeavour argued that the payment rules set out in Appendix 3 are not automatically
cumulative. The effect of the interpretation advanced by the CFMEU, it argued, was that ‘the
entitlements set out in the payment rules were necessarily cumulative and were received on
the basis of a ‘tick the box’ exercise, by looking at each payment rule in Appendix 3 and
determining whether that component might theoretically apply’12. Endeavour contended that
if the CFMEU’s interpretation was correct, the effect of this would be that employees would
also receive overtime payments on top of public holiday penalties.
[36] Endeavour argued that the Agreement does not require Endeavour to pay the
appropriate shift allowance on ordinary rates worked on a public holiday plus the public
holiday rate. The Agreement must do more than merely permit a payment to be made. In
Endeavour’s submission, it is not enough for the CFMEU to assert that payment of both
public holiday penalties and shift allowances is not proscribed and therefore it is required.
[37] Further, Endeavour argued that the payment rules do not operate independently of the
body of the Agreement. It contended that the interpretation proposed by the CFMEU ignored
the fact that the payment rule applying to any particular type of work must be determined
from the body of the Agreement, and ‘it is not permissible to start at Appendix 3 and tally up
each payment rule that could theoretically apply’13. Endeavour argued that to properly
construe the Agreement, it was necessary to start at clause 16 - Public Holidays. Clause 16.4
provides that ‘payment for public holidays is set out in Appendix 3 – Payment Rules’.
Appendix 3 then sets out the payments due to employees who are:
a) not required to work;
b) required to work up until their normal rostered hours; or
c) required to work in excess of their normal rostered hours on a public holiday.
[38] Importantly, Endeavour submitted, the public holiday payment rule in relation to
employees who are required to work, provides payment at a rate of two times ‘the
classification rate’ for the hours worked, in addition to their classification rate per hour,
producing the effect of treble time.
[39] Endeavour drew a distinction between ‘the classification rate’ and payments that were
applicable, for example for compassionate leave, which provided payment at a rate that the
employee would have received if they had attended work. Endeavour pointed to this variance
in the drafting of other payment rules in Appendix 3, which could be contrasted with the
drafting of the public holiday payment rule.
[40] Endeavour contended that there was no need to turn to other line items in Appendix 3,
nor elsewhere in the body of the Agreement, to determine the entitlement of employees who
perform work on a public holiday. It argued that clause 16 combined with the public holiday
‘component’ of Appendix 3 provided a complete answer to the question of what payments are
due to employees in respect of public holidays.
[41] The written submissions filed by Endeavour disputed the suggestion by the CFMEU
that Endeavour considered that only one component of the payment rules in Appendix 3 could
apply to a single hour of work. Rather, it submitted that ‘more than one component of the
[2017] FWC 1763
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payment rules will apply where a proper basis for this interpretation is found in the express
language of the Current Agreement’14. By way of example, Endeavour pointed to payment for
weekend shifts which is referred to in the submissions by the CFMEU. Endeavour submitted
that the CFMEU misconceived Endeavour’s position. Endeavour said that unlike clause 16.4,
the language of clause 7.2 provided an express basis for the payment of shift allowances in
addition to weekend penalties. By comparison, it argued, the public holiday clause contained
no similar reference to shift allowance.
[42] In response to the submissions of the CFMEU that it would be an inequitable outcome
for employees working different shifts on a public holiday to be paid the same rate of pay,
Endeavour argued that this was not a question of equity or merits but rather about applying
the principles of construction of an enterprise agreement.
[43] In summary, Endeavour argued that the public holiday provisions of the Agreement
were clear and comprehensive, and applied in place of all other allowances or components
which might otherwise have been triggered. As a result, there was no basis for an
interpretation of the Agreement which required shift penalties to be paid in addition to public
holiday penalty rates.
[44] I note there were some submissions by the parties as to the relevance or otherwise of
the Black Coal Mining Award 2010. I do not consider it necessary to have regard to this
award in circumstances where the language of the Agreement is clear and unambiguous.
Consideration
[45] The principles applicable to the construction of an enterprise agreement have been
canvassed at length in Golden Cockerel. It is not necessary that they be repeated here. They
are not in dispute and as indicated earlier, I apply them to the construction of the relevant
provisions of the Agreement as required to resolve this dispute.
[46] The express terms of the Agreement, in my view, lead only to the interpretation
contended by Endeavour.
[47] I find that on a plain reading of the relevant provisions of the Agreement, the payment
rule applying to a particular type of work is determined by reference to the body of the
Agreement, rather than reviewing Appendix 3 to ascertain which payment rules may apply. I
do not accept, as contended by the CFMEU, that it is clear from the text of Appendix 3 that
payment of a component is required once the respective payment rule has been satisfied. The
starting point is not a review of Appendix 3 to ascertain what payment rules might be
satisfied. Rather, it is the relevant clause within the body of the Agreement.
[48] Likewise, I reject the argument of the CFMEU that there is nothing in Appendix 3, or
the rest of the Agreement, that supports the view that the payment of one component (because
a relevant payment rule had been satisfied) nullified the payment of another component where
the relevant payment rule had been satisfied. Again, the starting point in my view is not
Appendix 3. The starting point in this case is the public holiday clause, which I find is a
standalone clause that does not provide for additional shift loadings for work performed on a
public holiday.
[2017] FWC 1763
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[49] I agree with the submissions of Endeavour that to find in favour of the construction
contended by the CFMEU, I need to find the Agreement requires, rather than merely permits,
the payment of shift allowances in addition to public holiday penalties.
[50] It is evident from the words in the public holiday clause that payment for a public
holiday includes only that which is specifically stated in Appendix 3. Were it otherwise, this
would have been explicitly stated within the Agreement, as it has been in other clauses. It is
clear from the language of other clauses within the Agreement that an express basis for the
payment of more than one component set out in Appendix 3 may be payable at the same time.
For example, clause 7.2 provides the payment of shift allowances in addition to weekend
penalties. This is contrasted with the public holiday clause which does not contain a similar
reference to shift allowance.
[51] I accept Endeavour’s contention that there is no need to turn to other line items in
Appendix 3, nor elsewhere in the Agreement, to determine the entitlement of employees who
perform work on a public holiday. I find that clause 16 combined with the public holiday
component of Appendix 3 provides a complete answer to the question of what payments are
due to employees who work on a public holiday. This is the most logical approach and
consistent with the principles applicable to the construction of an enterprise agreement as set
out in the Golden Cockerel decision.
[52] In relation to this particular dispute, in my view it is unnecessary to understand the
purpose behind various payments in circumstances where the wording of the Agreement is
clear and unambiguous. The purpose behind the various payments will not have the effect of
modifying what are in this case the plain and ordinary meaning of the words contained within
the Agreement.
[53] I am not persuaded by the CFMEU’s submission that there is an ‘obvious inequity’ in
circumstances where employees are paid the same public holiday rates while working
different shifts (i.e. afternoon or night shift) on the same day. To the extent that this might be
considered an inequity, in my view it is certainly not sufficient to base a finding that the
CFMEU’s construction of the Agreement is correct.
Conclusion
[54] For the reasons set out above, the relief sought by the CFMEU is refused and the
application is dismissed.
DEPUTY PRESIDENT
Appearances:
A Thomas for the Construction, Forestry, Mining and Energy Union.
B Rauf of Counsel with A Webber for Endeavour Coal Pty Ltd.
COMMISSION Del THE SEAL OF THE FAIL
[2017] FWC 1763
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Hearing details:
2017.
Sydney:
March 1.
Printed by authority of the Commonwealth Government Printer
Price code C, PR591385
1 [2014] FWCFB 7447.
2 PN 664, and PN 693 – 694
3 CFMEU submissions, Exhibit A4, paragraph 10
4 PN 619
5 PN 620
6 [2016] FWC 2845
7 PN 621 – 623
8 PN 634
9 PN 661
10 PN 663
11 exhibit R3, paragraph 15 – 16
12 exhibit R3, paragraph 17
13 exhibit R3, paragraph 27
14 exhibit R3, paragraph 32
