1
Fair Work Act 2009
s.739—Dispute resolution
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Simplot Australia Pty Limited
(C2017/1991)
Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT DEAN SYDNEY, 4 DECEMBER 2017
Application to deal with a dispute about matters arising under the enterprise agreement.
[1] On 13 April 2017 the “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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 with Simplot Australia Pty Ltd (Simplot).
[2] The application was made in accordance with clause 44 (Dispute Resolution) of the
AMWU, CEPU and Simplot Australia Pty Ltd National Collective Agreement 2014-2017 (the
Agreement). The nominal expiry date of the Agreement is 28 February 2017 but continues to
apply.
[3] The question I need to determine is whether the Agreement requires Simplot to pay an
Ulverstone Food employee who is not rostered to work, and does not work, on Easter
Saturday. 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 Ltd1 and Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union v Berri Limited2 (Berri).
[5] For the reasons set out below, I have found that the Agreement does not require
Simplot to pay an Ulverstone Food employee who is not rostered to work, and does not work,
on Easter Saturday.
[2017] FWC 5282[Note: An appeal pursuant to s.604 (C2017/7118) was
lodged against this decision.]
DECISION
E AUSTRALIA FairWork Commission
[2017] FWC 5282
2
Background
[6] The application was initially allocated to another member of the Commission for
conciliation. The dispute was not resolved and was reallocated to me for arbitration. Further
attempts at conciliation were held before me on 9 and 21 June 2017.
[7] The dispute was not resolved by way of conciliation and the application proceeded to a
hearing on 12 September 2017, with Ms L Saunders of Counsel appearing, with permission,
on behalf of the AMWU, and Mr M Mead from the Australian Industry Group appearing on
behalf of Simplot.
Matters agreed by the parties
[8] The Agreement applies to a number of Simplot processing plants across New South
Wales and Tasmania, namely, Kelso, Bathurst, Devonport and Ulverstone. This dispute only
concerns the site at Ulverstone, Tasmania.
[9] The parties submitted an Agreed Statement of Facts during the proceedings and is set
out in full below:
‘AGREED STATEMENT OF FACTS
Background
1. Simplot is a major Australian Food Manufacturer, with sites in every state.
Relevantly, Simplot operates a potato processing plant in Ulverstone, Tasmania.
2. The dispute relates to food processing employees at the Ulverstone plant (the
Food Employees).
3. The AMWU, CEPU and Simplot Australia Pty Ltd National Collective Agreement
2014-2017 (the Agreement) applies to Simplot and the Food Employees, and
covers the AMWU.
4. The AMWU is eligible to represent the industrial interests of, and has members
among, the Food Employees.
The Dispute
5. Food Employees currently work 38 ordinary hours a week, averaged over a
twenty-four week cycle.
6. Weekly wages for a Food Employee consists of:
a. 38 ordinary hours paid at the employee’s base rate per appendix 6 of the
Agreement (the Base Rate); and
[2017] FWC 5282
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b. An averaged penalty payment reflecting shift penalties and rostered
overtime (the Averaged Penalty Payment).
7. Where hourly payments are needed (for example, part-day sick leave), these
payments are calculated based on an hourly rate inclusive of the Food Employee’s
base rate and the Averaged Penalty Payment (the Roster Rate).
8. The exception to this is overtime, which is calculated on a Food Employee’s Base
Rate.
9. Food Employees are required to work their ordinary hours in accordance with a
roster set by Simplot. From time to time, the roster includes work on Saturdays
and Sundays.
10. On Easter Saturday, a Food Employee who is not rostered to work, and does not
work, does not receive any payment.’
Relevant provisions in the Agreement
[10] Clause 44 of the Agreement sets out the steps to be followed when a dispute arises:
44.1 Procedure
Issues in dispute regarding the application of this Agreement; matters pertaining
between the employee and the Company; and matters pertaining between the Unions
covered by this Agreement and the Company, will be resolved between the party or
parties and their nominated representatives (which for employee(s) can include a
nominated union delegate or official) in accordance with the following procedures:
Site-specific disputes
a) Where the dispute between the parties concern a matter(s) specific to a particular
site, the party or parties with the grievance must, in the first instance, raise the
matter with the relevant site management in a timely manner, at the Company’s
premises, at which the employee works or where the dispute arises. If the matter is
not resolved at site level in a timely manner, then the matter:
i. must then be raised with the relevant national management, if
applicable; or
ii. may be referred to FWC for conciliation and/or arbitration.
b) Where a matter that has progressed to the national level, in accordance with
44.1(a)(i), is not resolved at that level, the matter may then be referred to FWC for
conciliation and/or arbitration.
National disputes
Where the dispute between the party, or parties, concern national issues, the party, or
parties, with the grievance must, in the first instance, raise the matter with the relevant
[2017] FWC 5282
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national management. If the matter is not resolved at national level, then the matter
may then be referred to FWC for conciliation and/or arbitration.
44.2 While the steps in Clause 44.1 are being pursued, the status quo, which is the
situation existing immediately prior to the issue in dispute arising, will prevail. No
party shall be prejudiced as to the final settlements by the continuance of work in
accordance with this Agreement.
44.3 In the event of a party failing to observe these procedures, the other party may
take such steps as are open to resolve the matter.
44.4 None of the steps described above takes away:
a) an employee’s right to have a Union delegate or official; or
b) a Union delegate’s right to have an official present as necessary at any stage
of the dispute resolution procedure.
[11] Clauses 34.1(a) – (c) of the Agreement are relevant to the current dispute and provide:
34.1 Food Employees
a) The following days shall be public holidays for food employees (other than
casuals) for the purposes of this Agreement:
i. New Year’s Day;
ii. Anniversary or Foundation Day;
iii. Good Friday;
iv. Easter Saturday;
v. Easter Monday;
vi. Anzac Day;
vii. Labour Day;
viii. Queen’s Birthday;
ix. Christmas Day;
x. Boxing Day;
xi. Union Picnic Day to be observed during the period 1 June to 15
November or at an alternative date agreed between the parties to this
Agreement;
[2017] FWC 5282
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xii. August Bank Holiday which is the first Monday in August (in New
South Wales)
xiii. Regatta Day (in Southern Tasmania only);
xiv. Recreation Day (in Northern Tasmania only); and
b) Where any other day is generally declared or prescribed by or under a State law to
be observed generally within the State, or a region of a State, as a substitute for or
in addition to any of the above days, then that day shall be observed as the public
holiday in lieu of the prescribed day.
c) Payment for public holidays not worked
Employees (other than casuals) who are not required to work on public holidays
during all or some of the hours which on any other day would have been their ordinary
hours, shall be paid for such ordinary hours not worked at ordinary time plus where
appropriate, the relevant shift penalties.
[12] Clause 6.1 of the Agreement provides:
6.1 The Food, Beverage and Tobacco Manufacturing Award 2010 and the
Manufacturing and Associated Industries and Occupations Award 2010 are
incorporated in this Agreement with the exception of the following clauses:
a) Food, Beverage and Tobacco Manufacturing Award 2010
i. Clause 7 – Award flexibility;
ii. Clause 8 – Facilitative provisions;
iii. Clause 13.4 – Casual conversion to full-time or part-time employment;
iv. Clause 19 – Redundancy;
v. Clause 21 – Apprentice minimum wages;
vi. Clause 22 – Adult Apprentice minimum wages;
vii. Clause 24 – Unapprenticed junior minimum wages;
viii. Clause 27 – Extra rates not cumulative;
ix. Clause 29.4 – Superannuation fund;
x. Clauses 30.1 to 30.5;
xi. Clause 31 – Special provisions for shift workers; and
xii. Clauses 33.1, 33.6, 33.7, 33.8, 33.9 and 33.10.
b) Manufacturing and Associated Industries and Occupations Award 2010
i. Clause 7 – Award flexibility;
ii. Clause 8 – Facilitative provisions;
iii. Clause 23 – Redundancy;
iv. Clause 29 – Unapprenticed junior minimum wages; and
v. Clause 35.4 – Superannuation fund.
[2017] FWC 5282
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[13] Clause 6.2 of the Agreement provides:
6.2 To the extent that there is any inconsistency between this Agreement and the
Awards, then the provisions of this Agreement must apply. Where this
Agreement is silent, then the relevant Award must apply. Where this
Agreement is silent and the relevant Awards differ on conditions, the relevant
parties covered by this Agreement will resolve the issues in accordance with
the provisions of this Agreement, including the dispute resolution provisions at
Clause 44, Dispute Resolution.
AMWU’s submissions
[14] The AMWU’s outline of submissions commence by stating that the dispute is about
clause 34.1(c) of the Agreement. It relies on the terms of the Agreement set out above to make
good its case that Food Employees at the Ulverstone site who are not rostered to work on
Easter Saturday are entitled to the benefit of clause 34.1(c).
[15] The AMWU submitted that nothing in the clause, viewed alone or with regard to the
legitimate surrounding circumstances, gives rise to any ambiguity, and that accordingly,
interpretation should proceed with regard to contextual factors only.3
[16] The AMWU also submitted that it is not permissible to escape the plain language of
the agreement by recourse to the industrial history of fundamentally different documents.4
[17] The AMWU described the current dispute in oral submissions as follows:
‘[F]ood workers operate under a 24/7, 12-hour rotating shift roster. They work 12-hour
shifts across every day of the week, across various shift times. They are paid a roster
rate, so whatever pattern they work, they receive the same amount of money every
week. In circumstances where those employees are not rostered to work on public
holidays, they receive an additional 7.6 hours pay at their rostered rate.
The exception to this, and the only exception to this, is Easter Saturday.
Easter Saturday is a deemed public holiday under the agreement. It’s not a public
holiday in Tasmania. I mention that only as a point of interest. The question here is,
firstly, what clause 36.1(c) (sic) requires employees to be paid in the Easter Saturday
circumstance, but perhaps more plain, is it open to Simplot to treat Easter Saturday
differently.’5
[18] In its written submissions, the AMWU contended that an employee becomes entitled
to the benefit of clause 34.1(c) when:
a) A day is a public holiday within the meaning of clause 34.1(a), in this case,
Easter Saturday is listed in clause 34.1(a)(iv) as a public holiday for food
employees (other than casuals) for the purposes of this Agreement;
[2017] FWC 5282
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b) The employee is ‘not required to work on’ all or part that day – that is, food
employees who were not rostered on Easter Saturday, and who were not
requested to work, were therefore ‘not required to work on’ Easter Saturday.
c) On ‘any other day’ the time not worked ‘would have been their ordinary hours’
– that is, if on a different calendar day, the employee would work in the hours
which make up the public holiday, they are entitled to the benefit of the
clause.6
[19] The AMWU argued that this interpretation was supported by the express exclusion of
casuals, as they do not have fixed rosters and are not required to work on the public holidays,
therefore they have not been rostered for it.7
[20] The AMWU submitted that Simplot must pay a Food Employee who is not rostered to
work, and does not work, 7.6 hours at the Rostered Rate, which in other words, is a nominal
day containing 7.6 hours and where appropriate, contains the relevant shift penalties.
[21] The AMWU seeks the following orders from the Commission:
1. Food Employees employed under the Agreement who are not rostered to work,
and do not work, on Easter Saturday must be paid 7.6 hours pay at the Base Rate.
2. Within 14 days of this decision, Simplot must:
i. Identify any Food Employees engaged under the Agreement who were
not rostered to work, and did not work, on Easter Saturday in 2015,
2016 and 2017;
ii. Calculate what amount each identified employee would have received
had they been paid 7.6 hours at their Base Rate; and
iii. Provide the calculations to each relevant employee.
3. Within seven days of order (2) above being complied with, Simplot must pay each
employee identified under (2)(i) the amount calculated under (2)(ii).
a. If there is a dispute about the amounts calculated under Order (2), the
parties have leave to have the matter relisted at short notice.8
[22] I have given careful consideration to all of the submissions made by the AMWU, even
if they are not specifically referred to in this decision.
Simplot’s submissions
[23] Simplot submitted that the Agreement does not require it to pay anything to
Ulverstone Food Employees who are not rostered to work and who do not work on Easter
Saturday.
[2017] FWC 5282
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[24] The written submissions filed by Simplot argued that there were a number of failings
with the AMWU’s interpretation and that the AMWU has entirely misconstrued the effect and
operation of clause 34.1(c). Simplot submitted that clause 34.1(c), properly construed, applies
only in circumstances where an employee is rostered to work and then is not required to work
as a result of the public holiday.9
[25] Simplot made oral submissions that:
‘…the clause in question doesn’t have any work to do for non-rostered, non-worked
public holidays. Instead it is assigned; its purpose, its history and its terms properly
interpreted apply to rostered and not worked public holidays, so public holidays that
would fall on a day that sits within an employee’s roster cycle, but then as a result of it
being a public holiday there’s a direction not to attend for work. We say that that
interpretation is a clear and obvious one, having regard to the totality of the term, and
this in some way addresses the submission that has been made by the AMWU about us
reading down the term. We don’t say we’ve read it down at all. Instead what we’ve
done is have regard to the term in its totality as it sits within the context of the
agreement.’10
[26] The parties had competing arguments about whether the Agreement is silent on the
issue of a Food Employee being paid for not working on an Easter Saturday or whether it was
a deliberate omission from the Agreement.
[27] Simplot contended that clause 6.2 of the Agreement contained a positive statement
which read ‘where this agreement is silent then the relevant award must apply’.11 The relevant
award in this instance being the Food, Beverage and Tobacco Manufacturing Award 2010
(FBT Award), which, pursuant to clause 6.1 of the Agreement, is incorporated into the
Agreement.
[28] In support of this interpretation, Simplot relied on clause 37.3 of the FBT Award,
clause 31.6 of the Food Preservers Award 2000 and the 1994 Public Holidays Test Case
Decisions12. Simplot contended that these historical documents give effect to the concept of
how employees should be remunerated for non-worked and non-rostered public holidays and
may provide some guidance as to what the parties may have been thinking when they drafted
clause 34.1(c) of the Agreement.
[29] Clause 37.3 of the FBT Award is set out as follows:
37.3 Rostered day off falling on public holiday
(a) Except as provided for in clauses 37.3(b) and (c) and where the rostered
day off falls on a Saturday or a Sunday, where a full-time employee’s
ordinary hours of work are structured to include a day off and such day off
falls on a public holiday, the employee is entitled, at the discretion of the
employer, to either:
(i) 7.6 hours of pay at the ordinary time rate; or
[2017] FWC 5282
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(ii) 7.6 hours of extra annual leave; or
(iii) a substitute day off on an alternative week day.
(b) Where an employee has credited time accumulated pursuant to clause 28.6,
then such credited time should not be taken as a day off on a public
holiday.
(c) If an employee is rostered to take credited time accumulated pursuant to
clause 28.6 as a day off on a week day and such week day is prescribed as a
public holiday after the employee was given notice of the day off, then the
employer must allow the employee to take the time off on an alternative
week day.
(d) Clauses 37.3(b) and (c) do not apply in relation to days off which are
specified in an employee’s regular roster or pattern of ordinary hours as
clause 37.3(a) applies to such days off.
[30] Clause 31.6 of the Food Preservers Award 2000 provides:
31.6 Payment for public holidays
31.6.1 Subject to the other provisions of this clause, employees (other than casuals)
who are not required to work on any of such public holidays during all or some
of the hours which on any other day would have been their ordinary hours,
shall be paid for such ordinary hours not worked (or not paid for under 21.8
and 26.8 of this award) at ordinary time plus (where appropriate) the shift
allowance of 15% or 30% thereof prescribed for afternoon and night shift
workers, as the case may be.
31.6.2 This subclause shall only apply to public holidays observed on days which
would otherwise have been ordinary working days.
[31] Further, in its submissions Simplot relied on the following extract from the Full Bench
in the Public Holidays Test Case Decisions:
‘We refer here to full-time workers who do not regularly work a five-day, Monday –
Friday week. Such workers include persons who work regularly on Saturday and
Sunday, workers with variable rosters, continuous shift workers and employees who
work for nine days per fortnight or 19 days in each four weeks. This list is not intended
to be exhaustive.
It may happen that the prescribed holiday falls upon a day when the employee would
not be working in any event. Fairness requires that the workers be not disadvantaged
by that fact. The appropriate compensation, we think is:
[2017] FWC 5282
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It may happen that the prescribed holiday falls upon a day when the employee would
not be working in any event. Fairness requires that the workers be not disadvantaged
by that fact. The appropriate compensation, we think is:
- An alternative “day off”; or
- An addition of one day to annual leave; or
- An additional day’s wages
We understand that such compensation is already provided in many awards.
The non-standard week of a full-time worker may include Saturday, Sunday or both.
In accordance with our decision of 4 August, a public holiday (other than Easter
Saturday and Anzac Day) which fell on such a day would be the subject of a
substitution provision. The employee, in our opinion, should not enjoy leave in respect
of both the “actual” day and the substitute day. In our opinion the following
alternatives are equitable:
- The employee is not required to work on the “actual” day, receives the
payment which he or she would ordinarily receive for working on that day
and is not entitled to the substitute day;
- The employee is required to work the “actual” day but is entitled to the
substitute holiday. (Should the substitute day be a non-working day for the
employee, the compensation described in the previous paragraph would
apply.)’
[32] Simplot argued that there was no evidence before the Commission about what was
communicated to employees either during the course of negotiations or during the access
period, in the manner contemplated by Berri.13 In this case, Simplot urged the Commission to
examine the various pre-reform award terms.14
[33] Further, Simplot contended that the reason casuals are excluded from the operation of
clause 34.1(c) is because they are similarly excluded from the operation of the clause in its
entirety. On this point of contention, Simplot goes further in oral submissions to say:
‘The further depth that is provided to that submission is also found in the casuals clause
itself, clause 14.3(a) at page 33 of the bundle, that simply indicates the very
conventional industrial proposition that casuals receive a 25 per cent loading, and that
25 per cent loading is in compensation for paid leave and public holiday payments. So
there’s nothing remarkable about the fact that casuals are excluded from the operation
of 34.1(c).’15
[34] Simplot summarised what they say is the correct interpretation of clause 34.1(c) of the
Agreement in their written submissions as follows:
a. Clause 34.1(c) of the Agreement operates only to the extent that it provides an
entitlement to payment for an employee who is rostered and not required to work.
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b. Clause 37.3 of the FBT Award makes provision for an employee who is not
rostered and not required to work (including the payment of 7.6 hours pay in
certain circumstances). Those specified circumstances do not extend to “where the
rostered day off falls on a Saturday or Sunday”16 i.e. the clause does not provide
an entitlement to payment for non-rostered and non-worked public holidays that
fall on a Saturday or Sunday.
c. There is no additional mechanism within the Agreement to determine how
employees who are not rostered and do not work on a public holiday which falls
on a weekend are to be paid and in the absence of the incorporated FBT Award
term (clause 37.3) there is no provision in the Agreement that deals with non-
rostered and non- worked public holidays. The operation of the Agreement and the
incorporation of the FBT Award, mean that clause 37.3 of the FBT forms part of
the Agreement, and applies to the very circumstance of the current dispute.
d. Easter Saturday, by definition always has and always will fall on a Saturday, and
so the entitlement to the benefit which is prescribed by clause 37.3 (which may be
7.6 hours pay), does not apply due to the specific exception within the terms of
clause 37.3(a) of the FBT Award to public holidays which fall on a weekend.
Relief sought
[35] The AMWU seeks orders from the Commission, should it be successful in the current
application. During the hearing, I directed the parties to the decision of Metropolitan Fire and
Emergency Services Board v United Firefighters Union of Australia; Garth Duggan17 (UFU
Decision), and the decision on appeal to the Full Court of the Federal Court in Duggan v
Metropolitan Fire and Emergency Services Board18 (UFU Appeal Decision).
[36] The relevant sections of the UFU Decision are set out below:
‘The Power to make Orders in Private Arbitrations
[60] In the extract of the High Court decision in CFMEU v AIRC above it is made
clear that the exercise of judicial power results in an order that is binding of its own
force. So too is an order made under the Act pursuant to a specific power to make
orders of binding force. In the case of private arbitration, however, the arbitrator’s
powers depend on the agreement of the parties, usually embodied in a contract, and the
arbitrator’s award is not binding of its own force. An arbitrator’s decision in a private
arbitration should be expressed as a determination because it cannot be enforced under
the Act as an order.
[61] In submitting to the contrary the MFB seeks to conflate the terms of ss.595 and
739 of the Act. Such reliance is misplaced. Section 595(3) is a limitation on arbitration
powers and the issuing of orders in the absence of express authority to do so. Section
739 permits the Commission to arbitrate a dispute if the parties have authorised it to
do so under a term of an enterprise agreement. The parties cannot confer a statutory
power to make orders of a binding force on the Commission. All they can do is agree,
as a matter of contract, to accept the outcome of arbitration. The power to arbitrate is
[2017] FWC 5282
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created by the parties’ agreement and is enforceable as a matter of contract. The
decision of the Full Bench in Victoria University v National Tertiary Education
Industry Union [2015] FWCFB 2892 is not inconsistent with these principles.’
[37] In the final paragraph of the UFU Appeal Decision, the Federal Court said:
[94] We note for completeness that it was common ground that, on no view, could the
Commissioners orders stand, because he had no power to make them. He had power,
as a private arbitrator, to make a determination; he could not make binding orders of
the kind which the Commission was empowered to make under the FW Act.
[38] In response, the AMWU contended that this proposition was ‘obiter, disharmonious
with prior Full Bench authority, and wrong’19, and instead submitted that the Commission
does have the power to make binding orders and relied on s.595(3) of the Act.
[39] Section 595(3) of the Act provides:
‘The FWC may deal with a dispute by arbitration (including by making any orders it
considers appropriate) only if the FWC is expressly authorised to do so under or in
accordance with another provision of this Act.’
[40] The AMWU contended that s.595(3), correctly interpreted, means that the term
‘arbitration’, within the scheme of the Act, encompasses a power to make orders, and the
Commission may only so ‘arbitrate’ where expressly authorised to do so. It follows from this
that an authority to arbitrate encompasses a power to make orders. In support of this
proposition, the AMWU relied on Victoria University v NTEU20 and DL Employment v
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union21 as
precedents for the Commission to make orders in this matter.
[41] Simplot submitted that there is no basis for the granting of an order in the terms sought
by the AMWU, or any other order in settlement of the dispute, as any order would be beyond
the scope of the dispute and beyond the jurisdiction of the Commission.22
[42] Further, Simplot argued that there was no need to make formal orders in any event, as
it had provided an undertaking to the AMWU that they would accept the determination of the
Commission, subject to exercising any rights of appeal, and would comply with any
appropriate back payments that were required to be made to its Food Employees.23
[43] I consider the UFU Decision to be correct, and in any event I am bound to follow the
UFU Decision, which was confirmed by the UFU Appeal Decision. Further, the issue of
orders does not arise given my finding that the Agreement does not require Simplot to pay an
Ulverstone Food employee who is not rostered to work, and does not work, on Easter
Saturday.
Consideration
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[44] As set out earlier, the question I need to determine is whether the Agreement requires
Simplot to pay an Ulverstone Food employee who is not rostered to work, and does not work,
on Easter Saturday.
[45] As set out in Berri, ‘the resolution of the disputed construction of an agreement will
turn on the language of the agreement having regard to its context and purpose’24. It is clear
that context and purpose must be considered even when the words of the provision being
construed appear, and on their face, to have a clear and unambiguous meaning.
[46] In this matter, it was contended that no ambiguity arose and as such was unnecessary
to take account of evidence of surrounding circumstances. I agree there is no ambiguity and
accordingly I proceed to interpret the agreement with regard to contextual factors only.
[47] I agree with Simplot’s contention that, pursuant to clause 6.1 of the Agreement, clause
37.3 of the FBT Award is incorporated into the Agreement. Clause 6.1 states that the FBT
Award is incorporated into the Agreement with the exception of certain named clauses or sub-
clauses. The Agreement is precise as to which clauses and/or sub-clauses of the FBT Award
are not incorporated. Clause 37.3 of the FBT Award is not one of the clauses specifically
excluded (and therefore it is incorporated into the Agreement).
[48] Clause 6.2 then relevantly provides that the provisions of the Agreement apply to the
extent that there is any inconsistency between the Agreement and the Award, and where the
Agreement is silent, then the relevant Award must apply.
[49] I agree with the submissions of Simplot that clause 34.1(c), properly construed,
applies only in circumstances where an employee is rostered to work and then is not required
to work as a result of the public holiday. It follows then that the clause does not have any
work to do for non-rostered, non-worked public holidays.
[50] Clause 37.3(a) of the FBT Award specifically excludes any payment or benefit for a
rostered day off on a Saturday or a Sunday that falls on a public holiday. Given that Easter
Saturday is not substituted for another day and always falls on a Saturday, there is no benefit
provided by this clause in relation to Easter Saturday. This can be contrasted with clause
34.1(c) which only deals with employees who are ‘not required’ to work on a public holiday
but does not specifically deal with employees who are ‘not rostered’.
[51] There are no other clauses within the Agreement which otherwise deals with
employees who are not rostered and do not work on Easter Saturday.
[52] Clause 37.3(a) of the FBT Award applies to the circumstances of the current dispute.
This clause is incorporated into the Agreement. It ought to be given some work to do.
[53] I do not consider that section 116 of the Act is relevant in the context of this dispute.
The requirement for payment does not arise if the employee does not have ordinary hours of
work on the public holiday in question.
[54] For these reasons, and having had regard to the document as a whole and the relevant
clauses’ position within the Agreement, I find that the Agreement does not require Simplot to
[2017] FWC 5282
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pay an Ulverstone Food employee who is not rostered to work, and does not work, on Easter
Saturday. The dispute is determined accordingly.
DEPUTY PRESIDENT
Appearances:
L Saunders of Counsel for the Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union.
M Mead from the Australian Industry Group on behalf of Simplot Australia Pty Limited.
Hearing details:
2017.
Sydney:
September 12.
Final written submissions:
AMWU on 25 September 2017.
Simplot Australia Pty Limited on 9 October 2017.
Printed by authority of the Commonwealth Government Printer
Price code C, AE412434 PR596758
1 [2014] FWCFB 7447
2 [2017] FWCFB 3005
3 AWMU written submissions dated 24 July 2017, para 15
4 Transcript PN157
5 Transcript PN41-42
6 AWMU written submissions dated 24 July 2017, para 22 – 23
WORK COMMISSION THE SEAL OF THE FAIT
[2017] FWC 5282
15
7 AWMU written submissions dated 24 July 2017, para 24
8 AMWU written submissions dated 24 July 2017, para 32
9 Simplot’s written submissions dated 22 August 2017, para 20
10 Transcript PN120
11 Transcript PN136-137
12 Prints L4534 and L9178
13 Respondent’s written submissions dated 22 July 2017, para 9-10
14 Transcript PN115
15 Transcript PN126
16 Clause 37.3(a) of the FBT Award
17 [2016] FWCFB 8120
18 [2017] FCAFC 112
19 AMWU Further Submissions re Remedy dated 22 September 2017, para 3
20 Victoria University v National Tertiary Education Industry Union [2015] FWCFB 2892
21 DL Employment v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2014] FWCFB 7946
22 Simplot’s Submission in Reply as to remedy dated 9 October 2017
23 Transcript PN22
24 Berri at para 114
