1
Fair Work Act 2009
s.604 - Appeal of decisions
The Australasian Meat Industry Employees Union
v
Diamond Valley Pork Pty Ltd
(C2020/7789)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT MANSINI
SYDNEY, 17 FEBRUARY 2021
Appeal against decision [2020] FWC 5286 of Deputy President Colman at Melbourne on 1
October 2020 in matter number C2020/4387
Introduction
[1] The Australasian Meat Industry Employees’ Union (AMIEU) has lodged an appeal
against a decision issued by Deputy President Colman on 1 October 20201 (decision)
concerning the proper interpretation of provisions of the Diamond Valley Pork Pty Ltd and
Australasian Meat Industry Employees’ Union (Victorian Branch) Meat Processing
Enterprise Agreement 2019 (Agreement) pertaining to part-time employment. The decision
arose from an application by the AMIEU made pursuant to s 739 of the Fair Work Act 2009
(FW Act) for the Commission to resolve a dispute pursuant to the dispute resolution
procedure in clause 39 of the Agreement. Clause 39 relevantly empowers the Commission,
where the parties agree, to arbitrate any dispute about “a matter under this Agreement”. The
dispute notified by the AMIEU relevantly concerned the circumstances in which casual
employees converted to part-time employment under the casual conversion provision of the
Agreement are entitled to overtime. The AMIEU and the employer party, Diamond Valley
Pork Pty Ltd (Diamond Valley), consented to the Commission arbitrating the dispute. The
Deputy President relevantly determined that part-time employees under the terms of the
Agreement are engaged on a week-by-week basis for a minimum number of working hours
determined for each week by the employer, and that any hours worked in addition to these
minimum specified hours is to be paid as overtime. The three grounds of appeal stated in the
AMIEU’s notice of appeal all contend, in varying ways, that the Deputy President’s
conclusion was in error because it was founded upon the incorrect proposition that part-time
employees under the Agreement are engaged on a week-by-week basis. The AMIEU added
two additional grounds of appeal in their written submissions dated 18 November 2020 which
likewise challenge this proposition.
1 [2020] FWC 5286
[2021] FWCFB 532
DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 532
2
[2] There is no dispute between the parties that the AMIEU may, pursuant to s 604 of the
FW Act, appeal the decision with the permission of the Commission. We considered, and the
parties agreed, that the appeal could be adequately determined without the need for oral
submissions at a formal hearing and, accordingly, pursuant to s 607(1) of the FW Act, the
appeal was conducted on the basis of written submissions only.
Relevant provisions of the Agreement
[3] Clause 1 of the Agreement specifies that the “Parties” to the Agreement are Diamond
Valley, employees whose remuneration and conditions of employment are determined by the
Agreement, and the Victorian Branch of the AMIEU. The classifications of employees
covered by the Agreement are defined in Schedule 2 and, broadly speaking, consist of four
grades of “Food Process Worker” performing meat processing functions at various levels.
[4] Clause 4.16 of the Agreement provides that “Part Time Employee has the meaning
given to it in clause 5.2 of this Agreement”. Clause 5.2 provides:
5.2. Part Time Employment
a) An employee with part time employment is known as a Part Time Employee.
b) A Part Time Employee is engaged by the week as a part time weekly hire
employee to work on a regular basis less than 38 Ordinary Hours of Work and
with a specified minimum number of hours each week.
c) A Part Time Employee will accrue leave on a pro-rata basis based on the
specified number of hours worked each week.
c) A Part Time Employee will be provided with a minimum of four hours work or
be paid for a minimum of four hours on any day they are required to work.
d) The Company will advise a Part Time Employee by the Friday before the next
working week of the pattern of work to be worked by the Part Time Employee.
e) All time worked in excess of the hours as mutually agreed will be overtime.
[5] This provision may, as later explained, be compared to clause 5.1, which pertains to
full time employment and provides:
5.1. Full time Employment
a) An employee with full time employment is known as a Full Time Employee.
b) The Employee is engaged as a full time weekly hire employee and paid as
such.
c) A Full-Time Employees hours of work shall be 38 hours per week.
d) A Full-Time Employee will accrue leave based on their Ordinary Hours of
Work in accordance with this agreement.
[2021] FWCFB 532
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[6] Clause 5.3 deals with casual employment, and clause 5.3(a) provides: “a) A Casual
Employee is one who is engaged by the hour on an irregular basis and paid as such. With no
guarantee of ongoing work.”.
[7] Clause 5.4 deals with casual conversion, and provides in its entirety as follows:
5.4. Right to request casual conversion
a) After twelve months continuous employment, a Casual Employee shall become
eligible to request that their employment be converted to permanent Part Time
or Full time employment.
b) A Casual Employee will only be eligible if, for a period of 12 months
preceding the request, the Employee has been working a pattern of hours
which could, without significant adjustment, be performed by a Full Time or
Part Time employee in accordance with this Agreement.
c) Any request under this clause must be in writing and provided by the Casual
Employee to the Company (Conversion Request).
d) Where a Casual Employee seeks to convert to permanent employment, and has
made a Conversion Request in accordance with this clause, the Company may
agree to or refuse the Conversion Request.
e) The Conversion Request may only be refused by the Company on reasonable
grounds and after consultation with the Casual Employee.
f) Without limiting the reasons which may constitute reasonable refusal of a
Conversion Request, the Company may refuse such a request in the case of an
employee who seeks to convert to a fixed pattern of part-time work which
cannot reasonably be accommodated by the Company for operational reasons.
In the case of such a refusal the relevant Employee and the Company will give
due consideration to conversion to Full Time Employment instead.
g) Any ground of refusal for the Company must be based on facts that are known
or reasonably foreseeable.
h) Where the Company refuses a Casual Employee's Conversion Request, the
Employer must provide the Casual Employee with the Company's reasons for
refusal in writing within 21 days of the Conversion Request being made.
i) If the Casual Employee does not accept the Employer's refusal, this will
constitute a dispute that will be dealt with under the dispute resolution
procedure in clause 39 in this Agreement.
j) Where it is agreed that a Casual Employee will have their employment
converted to Full Time or Part Time employment as provided for in this clause,
the Company and Employee must discuss and record in writing the form of
employment to which the Employee will convert.
[2021] FWCFB 532
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k) The conversion will take effect from the start of the next pay cycle following
such agreement being reached and recorded in writing, unless otherwise
agreed.
l) Nothing in this clause obliges a Casual Employee to convert to permanent
employee, nor permits the Company to require a Casual Employee to so
convert.
m) Nothing in this clause requires a Company to significantly adjust the
established pattern of hours of a Casual Employee seeking conversion to
permanent employment.
n) The Company must provide a Casual Employee with a copy of the provisions
of this clause within the first 12 months of the Employee's first engagement to
perform work. Once a Casual Employee has converted to Full Time or Part
Time Employment, the Employee may only revert to Casual Employment with
the written agreement of the Company.
o) A Casual Employee must not be engaged and re-engaged (which includes a
refusal to re-engage), or have their hours reduced or varied, in order to avoid
any right or obligation under this clause.
[8] Clause 5.6(b) of the Agreement provides that ordinary hours may be rostered on any
day of the week Monday to Friday inclusive, and clause 5.6(c) provides that the ordinary
hours of day work are to be worked between the span of 5.00am and 7.00pm, “which shall be
arranged by the Company to meet business requirements”.
[9] Clause 4.13 defines “Overtime Hours” as “…all time worked by the Employee outside
the Ordinary Hours of work on any day or shift”. “Ordinary Hours of Work” is defined in
clause 4.14 to mean “…the hours worked by an employee either as Day shift, or an Afternoon
Shift or Night Shift”.
[10] Clause 7 of the Agreement deals with overtime. Clause 7.1(a) provides that the
employer may require employees to work reasonable overtime, which the employer defines as
12 Saturdays per year and up to a half hour Monday to Fridays “where it is considered
absolutely necessary to continue processing as determined by the Company”. Clause 7.1(c)
provides:
c) Notification about overtime requirements will be given by the Company on the
Friday prior except in the case of breakdowns where overtime will be
performed in order to ensure production will be run off.
[11] Clause 9 deals with a qualifying period and provides that “New Employees (other than
casuals) are appointed initially for a qualifying period of six months. If during this period the
Employee's performance is not satisfactory or no further work is available, employment may
be terminated on the basis of one week's notice or pay in lieu of notice.”
[2021] FWCFB 532
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[12] Clause 7.2 provides that all time worked by employees outside the ordinary hours of
work on any day or shift are to be deemed as overtime. Clauses 7.3, 7.4 and 7.5 define the
overtime rate for weekdays, Saturdays and Sundays respectively. Clause 7.6 provides:
7.6 Employees duty to notify if unavailable for overtime
It is the responsibility of an Employee who, for genuine family/domestic/
medical reasons is unable to work in excess of the rostered ordinary hours on
any particular day, and/ or is unable to work a particular weekend shift, to
notify the Company (by direct communication to their Manager or Supervisor)
at the earliest possible opportunity once the roster is released that they are
unavailable for work.
[13] Clause 12.3 provides that the period of notice of termination required to be given by
the employer or any employee, other than a casual, is as follows:
Employee's period of continuous service Required Notice
Not more than 1 year 1 week
More than 1 year but no more than 3 years 2 weeks
More than 3 years but no more than 5 years 3 weeks
More than 5 years 4 weeks
[14] Clause 12.4 provides that an employee is entitled to an additional week of notice if the
employee is over 45 years of age and has more than two years’ service.
[15] Clause 14.1 provides for a scale of severance pay for employees, other than casuals,
who are terminated due to redundancy. The amounts payable are expressed in terms of
“weeks’ pay”. Clause 14.2 provides that “Weeks’ pay means the Ordinary Rate of Pay for the
week”.
[16] Part D of the Agreement provides for various leave entitlements. In relation to annual
leave and sick leave for part-time employees, clauses 23.2 and 24.2 respectively both provide
that leave will accrue on a pro-rata basis “based on their Ordinary hours of work”.
[17] Clause 31(e), which prescribes penalty rates to apply when work is performed on a
public holiday, refers to “Permanent Employees” in a way which appears intended to
distinguish full-time and part-time employees from casual employees. Similarly, item 1 of
Schedule 1, which sets out the rates of pay for employees, contains separate rate tables
applicable to “Casual Employees” (exclusive and inclusive of the casual loading) and
“Permanent Employees”.
Part-time employment under the relevant award
[18] The modern award which covered employees to whom the Agreement applies at the
time the Agreement was made and approved was the Meat Industry Award 2010 (Award), and
this award was the comparator for the purpose of the application of the better off overall test
(BOOT) in s 193 of the FW Act when the Agreement was assessed for approval. Clause 13 of
the Award provided for part-time employment as follows:
13. Part-time employment
[2021] FWCFB 532
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13.1 An employer may employ part-time employees in any classification in this
award.
13.2 A part-time employee is an employee who:
(a) works less than full-time hours of 38 per week;
(b) has reasonably predictable hours of work of not less than four
consecutive hours on any day; and
(c) receives, on a pro rata basis, equivalent pay and conditions to those of a
full-time employee who perform the same kind of work.
13.3 At the time of employment the employer and the part-time employee will
agree, in writing, on a regular pattern of work specifying at least:
(a) the hours worked each day;
(b) which days of the week the employee will work;
(c) the actual starting and finishing times of each day; and
(d) that the minimum daily engagement is four hours.
13.4 Clause 13.3 does not apply to a meat processing establishment, except for
employees of the establishment engaged in retail and/or wholesale sales of
fresh meat and ordinary products.
13.5 The terms of any agreement concerning part-time employment or any agreed
variation to the terms will be in writing with a copy retained by the employer
and a copy provided to the employee.
13.6 All time worked in excess of the hours as mutually agreed will be overtime.
13.7 A part-time employee employed under the provisions of this clause will be
paid for ordinary hours worked at the rate of 1/38th of the appropriate weekly
rate prescribed in clause 19—Minimum wages.
The decision
[19] In relation to the issue the subject of this appeal, the Deputy President’s conclusion
was that Diamond Valley was correct in contending that the “specified minimum number of
hours each week” referred to in clause 5.2(b) is a minimum number of hours set from week to
week, and not a fixed minimum number for all weeks agreed with employees upon the
commencement of their part-time employment.2 The Deputy President interpreted clause 5.2
as follows:
2 Ibid at [22]
[2021] FWCFB 532
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“[23] Clause 5.2 concerns part-time weekly hire employees, not part-time employees
generally. Clause 5.2(b) clearly states that a part-time employee is ‘engaged by the
week as a part-time weekly hire employee’. These words must be given meaning. The
union acknowledged that its interpretation did not give these words any particular
work to do. The proper meaning of ‘engaged by the week as a weekly hire employee’
is that each week there is a new engagement, and that an employee is hired for that
week. The working arrangements for a new week are agreed afresh. An employee
might reject the proposed arrangements for a particular week, in which case there may
or may not be an alternative offer from the company. Whatever is proposed and
agreed for a given week however, clause 5.2(d) requires that an employee be provided
with a minimum of four hours work or be paid for a minimum of four hours on any
day they are required to work. The words ‘specified minimum number of hours each
week’ referred to in clause 5.2(b) means ‘from week to week’, not a fixed weekly
number of hours that applies to all weeks.”
[20] The Deputy President noted that the Agreement could have but did not contain any
provision providing for a fixed minimum number of hours for all weeks for part-time
employees.3 The Deputy President went on to say:
“[24] …The purpose of weekly-hire employment is to be responsive to variability in
volumes of work. It would be inconsistent with this purpose for weekly minimum
hours to be fixed. The company explained at the hearing that it is a ‘toll’ facility,
processing its customers’ product, and that its labour requirements depend upon its
customers’ orders. The union contended that the company has a large amount of work
and that its business has been expanding in recent times. But it did not dispute the
nature of the company’s business. In my view, it is not surprising that a toll meat
processing facility would have, as part of its employment framework, a weekly hire
employment arrangement.”
[21] The Deputy President rejected the AMIEU’s contention that clause 5.4 posits that it
will be possible to fix standard hours and that these will be set on a standing basis pursuant to
clause 5.2(b), concluding that the pattern of work referred to in clause 5.4 might be one of
variability and that “[t]here is nothing in clause 5.4 to suggest that conversion to part-time
employment will warrant a fixed and unchanging number of minimum weekly hours under
clause 5.2.”4 He also rejected the AMIEU’s contention that the 12 month period leading up to
conversion to part-time employment would provide the starting point for the determination of
fixed weekly hours, concluding that “this would almost inevitably involve a departure from
any pattern that had established itself over the 12 month period and remove from the company
the variability in weekly rostering it had previously possessed, thereby resulting in the need
for a ‘significant adjustment’” and would “tend to result in the casual employee not being
eligible for conversion”.5 The Deputy President then said:
“[27] In my opinion, the words ‘specified minimum number of hours each week’ in
clause 5.2(b) mean a specified number for each week, from week to week. These
hours are agreed between the employer and the employee each week. The employer
offers them and the employees either accept or reject them. If in any week a part-time
3 Ibid at [24]
4 Ibid at [25]
5 Ibid at [26]
[2021] FWCFB 532
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employee works hours in excess of the minimum number specified for that week,
which are the ‘hours as mutually agreed’ for the purpose of clause 5.2(f), overtime is
payable for those additional hours.”
[22] The Deputy President rejected the AMIEU’s argument that Diamond Valley’s
interpretation resulted in part-time employees’ conditions under the Agreement being less
favourable than under the previous agreement, the Enterprise Agreement Diamond Valley
Pork Pty Ltd Meat Processing 2017 (2017 Agreement).6 He also rejected the AMIEU’s
argument that Diamond Valley’s interpretation would lead to the Agreement not passing the
BOOT on the basis that a proceeding under s 739 cannot properly entail a reconsideration of
the BOOT and that, in any event, clause 13.3 of the Award, which provides for a regular
pattern of work for part-time employees, did not under clause 13.4 apply to meat processing
facilities such as Diamond Valley.7 The Deputy President found that the Award made no
provision for minimum weekly hours of work for part-time employees at such facilities. 8
Appeal submissions
[23] In relation to the three appeal grounds stated in its notice of appeal, the AMIEU
firstly submitted that the term “weekly hire” used in clauses 5.1 and 5.2 is a standard term that
has been used in the meat industry for many years, drawn from older awards, which refers to
full-time and part-time employment and distinguishes it from daily hire employment. It said
that all awards in the industry up until 1996 commonly referred to full-time and part-time
employees as weekly employees, and it was only in the 1996 Meat Industry Award that the
modern terminology of full-time and part-time employment was introduced. The AMIEU
submitted that use of the term in the Agreement is “nothing more than those colloquial
hangovers from older award-based language being transcribed into an agreement as
commonly understood language in the meat industry” and that “[i]t is not now and has not for
an exceptionally long time, if ever, been the case that persons employed by the week were or
are subject to renegotiation of their terms of employment on a weekly basis”. Thus, it was
submitted, the Deputy President erred in treating weekly hire employment as something
distinct from permanent employment.
[24] Secondly, the AMIEU noted that the term “weekly hire employment” was used in
relation to full-time as well as part-time employment, and it was manifestly erroneous that
full-time employees are subject to fresh terms of hiring every week along with a new
engagement. The AMIEU also said that if it were the case, as found by the Deputy President,
that weekly employment involved the employer offering hours of work each week, these
could be rejected by the part-time employee (and, indeed, the full-time employee), in which
case the employee would have no work to perform. This was, it was submitted, inconsistent
with the provisions of the Agreement such as clauses 12 and 16 which suggest continuous
employment. The AMIEU also submitted that it was inconsistent with the ability of the
employer to adequately run its business, since it would be unknown on a weekly basis who in
the workforce would be working the next week and who would be rejecting the rosters
provided. There was no evidence, the AMIEU pointed out, that Diamond Valley ran its
business in this way. It was further submitted that if employees do not know from week to
week how many hours they will be working, then their employment retains the irregular
6 Ibid at [29]
7 Ibid at [30]-[31]
8 Ibid at [31]
[2021] FWCFB 532
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character of casual employment and does not merit the description of part-time employment at
all.
[25] Thirdly, the AMIEU submitted that the Deputy President erred in determining that the
“specified hours” referred to in clause 5.2(b) were the same as the “pattern of hours” referred
to in clause 5.2(d), thereby failing to distinguish the requirement of the Agreement to set a
minimum number of hours each week as opposed to when and how those hours would be
worked – that is, in what pattern. The AMIEU contended that the provisions for the rostering
of hours in clause 5.6(b) and (c) are the same as the pattern of hours referred to in clause
5.2(d), and that this accommodates the pig processing industry in which it is commonplace for
a company to operate at different hours on different days of the week and to have changing
days of peak production and days of lower production dependent upon customers’ orders. The
Agreement, it was submitted, provides the flexibility to alter this pattern weekly to reflect
customer demand, but this did not affect the specified number of hours of either a full-time or
a part-time employee.
[26] In its submissions, the AMIEU sought to amend its grounds of appeal by adding two
additional appeal grounds (a third additional appeal ground was at first identified but later
abandoned as unnecessary). In the first of these, it contended that the Deputy President erred
in finding that, under clause 5.4 the Agreement, a person converting from casual employment
to part-time employment would not continue to work the same pattern of hours as they had
before without significant adjustment. It submitted that it would be entirely inconsistent with
the language used in the Agreement if a casual employee who worked a regular number of
(say) 30 hours per week converted to part-time employment with no weekly minimum
number of hours specified and only a promise of 4 hours’ pay for any day that the employer
requested them to work. The other additional ground contended that the Deputy President
erred in finding that the Agreement contained no requirement for a fixed number of minimum
weekly hours, when in fact that was the requirement provided for in clause 5.2.
[27] The AMIEU submitted that permission to appeal should be granted because the
decision contains relevant errors and should not be allowed to stand and affects a large
number of employees (including employees not the subject of the dispute), and because the
appeal raises issues of importance and/or general application as well as important questions
about the effects on employment of persons seeking to convert from casual to permanent
status.
[28] Diamond Valley submitted that permission to appeal should be refused because it is
not sufficient that error or the preference for a different result is identified, the appeal does not
raise issues of importance and general application, there is no diversity of decisions requiring
appellate guidance, and the decision does not manifest an injustice, is not counter-intuitive,
and does not apply disharmonious legal principles. In relation to the grounds of appeal, it
submitted that:
the Agreement provides for three categories of employment, namely full-time, part-
time and casual, and the term “weekly hire” takes on the same meaning as a daily hire
employee under the Award and was agreed to allow Diamond Valley flexibility in its
operations;
[2021] FWCFB 532
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the Deputy President’s construction of “engaged by the week” in clause 5.2(b) was
correct and consistent with the understanding of hire arrangements as set out in the
Award and more generally;
the specific number of hours is reflected in clause 5.2(d) in that a minimum of 4 hours
is guaranteed daily, and the requirement in clause 5.2(f) for mutual agreement as to
hours means that, at the end of each week, employees agree to a new set of hours that
they will then work the following week;
the proposition that a casual employee who has worked an average of 30 hours per
week over a 12-month period shall be converted to permanent employment for 30
hours per week in every week is inconsistent with clauses 5.4(f) and 5.4(m) of the
Agreement;
overtime is only payable if an individual works in excess of the mutually agreed hours
advised on Friday of each week for the following week, subject to the ceiling of 38
hours at ordinary pay, and the Agreement does not contemplate fixed hours (beyond 4
hours per day);
the AMIEU’s argument would circumvent the flexibility afforded in the Agreement to
Diamond Valley to be able to meet increasing and decreasing demand over time,
which it agreed to in the bargaining process; and
these provisions give the freedom to the part-time employee to have control over their
ongoing working relationship while still being able to accrue paid leave entitlements.
[29] In relation to overtime rates, Diamond Valley’s position was stated to be that “where
there is work available beyond the agreed hours and the employee is agreeable to work
additional hours then it would be in both parties’ best interest for that work to be the same
rate as other employees performing the same work. Where an employee does not want to do
additional hours, then they should be allowed to withdraw at the completion of their agreed
weekly hours”. It submitted that to restrict the employee’s ability to work beyond a set
number of hours for each week could limit the employee’s ability to earn additional income. It
further submitted that “[t]he intent behind the inclusion of a Casual conversion clause was in
recognition of the need for employees to be able to transition away from Casual employment
into something more stable and secure”. However, it submitted that “to accept the union’s
position” would create an anomalous situation whereby a full-time employee would not
receive overtime rates until they had worked 38 hours in a week, whereas “at the same time
each Part-time employee would receive overtime rates after they pass their average hours as
opposed to the hours mutually agreed to on the Friday of the previous week”.
Consideration
[30] We consider that permission to appeal should be granted, for two reasons. First,
although the decision the subject of the appeal is nominally concerned with the resolution of a
dispute about the terms of a particular enterprise agreement, its reasoning and conclusion raise
broader questions about the meaning of the expression “weekly hire” in the context of the
meat industry and the practical operation of the casual conversion mechanism. In the last
respect, it may be noted that clause 5.4 of the Agreement is, on its face, modelled to a
substantial degree on the casual conversion provision applying to meat processing
establishments in clause 15.14 of the Award which is, in turn, largely but not wholly identical
[2021] FWCFB 532
11
to the model casual conversion provision established in 4 yearly review of modern awards –
Casual employment and Part-time employment.9 Second, it appears from their submissions
that both parties disagree with the Deputy President’s decision. We note in this connection
Diamond Valley’s submission that where an employee agrees to work additional hours that
become available beyond the hours of work agreed for that week, the employee will be paid
“the same rate as other employees performing the same work” – that is, like a full-time
employee, they would be paid at ordinary time up until 38 hours have been worked. Although
Diamond Valley does not say so, this is clearly at odds with the Deputy President’s
conclusion that overtime is payable to part-time employees for all hours worked in excess of
the minimum number of hours specified for each week.10 These matters render it desirable for
there to be appellate review of the decision.
[31] The “correctness standard” applies to this appeal – that is, the relevant issue is whether
the Deputy President’s answer to the question of interpretation raised by the dispute before
him is right or wrong. If we consider that his answer was not correct, our duty is to substitute
what we consider to be the correct answer for the answer given in the decision.11 The
principles of interpretation of enterprise agreements applicable to the resolution of that
question were not in dispute between the parties. The most succinct expression of the correct
approach is that articulated by the Federal Court Full Court in WorkPac Pty Ltd v Skene12 as
follows (citations omitted):
“[197] The starting point for interpretation of an enterprise agreement is the ordinary
meaning of the words, read as a whole and in context. The interpretation “… turns on
the language of the particular agreement, understood in the light of its industrial
context and purpose …”. The words are not to be interpreted in a vacuum divorced
from industrial realities; rather, industrial agreements are made for various industries
in the light of the customs and working conditions of each, and they are frequently
couched in terms intelligible to the parties but without the careful attention to form
and draftsmanship that one expects to find in an Act of Parliament. To similar effect,
it has been said that the framers of such documents were likely of a “practical bent of
mind” and may well have been more concerned with expressing an intention in a way
likely to be understood in the relevant industry rather than with legal niceties and
jargon, so that a purposive approach to interpretation is appropriate and a narrow or
pedantic approach is misplaced.”
[32] At the outset of our consideration of the question of interpretation raised by the appeal,
we observe that the Deputy President’s answer to this question establishes, on the foundation
of the words “…engaged by the week as a part-time weekly hire employee…” in clause
5.2(b), a putative novel form of employment that bears little relationship to the established
industrial conception of part-time employment. As discussed in the Casual employment and
Part-time employment decision, the usual features of part-time employment are that it
involves a fixed number of ordinary working hours per week, reasonable certainty as to the
days upon which work is performed and the times upon which work starts and finishes, and
9 [2017] FWCFB 3541, 269 IR 125
10 [2020] FWC 5286 at [27], [33]
11 Rail Commissioner v Rogers [2021] FWCFB 371 at [61]; RTBU v Laing O’Rourke Australia Construction Pty Ltd [2019]
FWCFB 33 at [23]; Appeals by ASU and CPSU [2013] FWCFB 4752, 234 IR 366 at [13]
12 [2018] FCAFC 131, 264 FCR 536
[2021] FWCFB 532
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provision of the benefits of full-time employment on a pro-rata basis.13 Another feature of
part-time employment is that it is a form of what is described as “permanent” or, somewhat
anachronistically, “weekly” employment – that is, employment that continues indefinitely
subject to termination on a prescribed period of notice. This terminology was explained in the
Casual employment and Part-time employment decision as follows:
“[14] Most modern awards provide for three types of employment: full-time, part-time
and casual. Different terminology has been used to distinguish full-time and part-time
employment from casual employment. Full-time and part-time employment were for a
long time described as “weekly” employment, on the basis of the notice period usually
required under awards to terminate the employment. As discussed later, this was
fundamentally different to casual employment, which may be terminated on short or no
notice. However the label of “weekly” employment has generally fallen into disuse,
particularly having regard to the longer notice periods prescribed by s.117 of the FW
Act where the employment has lasted longer than a year. Another common description
of full-time and weekly employment, as distinct from casual employment, is
“permanent” employment. This is somewhat of a misnomer, since no employment is
truly permanent, but this expression is in common currency and will be used
throughout this decision. It is particularly useful to distinguish part-time employment
in the sense it is used in modern awards from casual employment involving the
working of part-time (that is, less than full-time) hours.”
[33] The putative form of “part-time” employment identified in the decision as established
by clause 5.2(b) has none of these features: it is not “permanent” in the sense discussed above,
does not involve any fixed number of hours per week, does not involve any degree of
certainty as to days upon which work is performed or as to starting and finishing times, and
does not involve the pro-rata provision of the benefits of full-time employment (because there
is no fixed number of hours of work allowing for the stable provision of such benefits on a
proportional basis). The propounded form of employment would best be characterised as a
weekly analogue of daily casual employment whereby, beyond each weekly engagement,
there is no advance commitment to continuing and indefinite work. It would be open for the
employer to offer as many, or as few hours, per week as suits its needs, provided that the
number is less than 38. This would presumably include the capacity to offer zero hours. And,
because the putative form of employment requires agreement to be reached between the
employer and employee at the end of each week as to the hours to be worked in the following
week, in the absence of agreement being reached (because, for example, the employee rejects
the employer’s offered number and pattern of hours), no work would be performed.
[34] It is possible for an enterprise agreement to create a new category or model of
employment. For example, in the Loaded Rates Agreements,14 the Full Bench gave
consideration to an enterprise agreement which contained a form of employment which,
although labelled as part-time employment, did not bear most of the usual incidents of part-
time employment. The Full Bench determined that, for the purpose of the BOOT, this form of
employment was to be compared with casual rather than part-time employment under the
relevant award.15 However, one might expect that any such novel form of employment in an
13 [2017] FWCFB 3541, 269 IR 125 at [86]-[97]
14 [2018] FWCFB 3610
15 Ibid at [135]-[138]
[2021] FWCFB 532
13
enterprise agreement would be articulated in express terms and in a fully developed scheme of
operation.
[35] In the case of the Agreement here, we do not consider that the words “…engaged by
the week as a part-time weekly hire employee…” in clause 5.2(b), read in the context of the
Agreement as a whole, are capable of being construed as establishing the novel form of
employment propounded in the decision, for the following reasons. First, we consider that the
context makes it clear that the expression “weekly hire employee” when used in the
Agreement cannot mean an employee engaged afresh each on a new arrangement. This is
because, notwithstanding that a full-time employee is also described as a “weekly hire
employee” in clause 5.1(b), full-time employees are guaranteed 38 hours of work per week by
clause 5.1(c). This guarantee of work, consistent with the usual concept of full-time
employment, is not reconcilable with any notion of a full-time employee being re-engaged
each week on a fresh arrangement.
[36] Second, clause 5.2(b) states that a definitional characteristic of part-time employment
is that it involves engagement “…to work on a regular basis…”. This is to be contrasted to
the characterisation of casual employment in clause 5.3(a) as engagement “on an irregular
basis” and “[w]ith no ongoing guarantee of work”. The model of part-time employment
posited in the decision gives no content to the requirement for engagement to work on a
regular basis, since it inherently involves irregular and intermittent engagement. In that sense,
it matches the Agreement’s characterisation of casual rather than part-time employment.
[37] Third, the casual conversion mechanism in clause 5.4 expressly describes part-time
employment, together with full-time employment, as “permanent” (in paragraphs (a), (d), (l)
and (m)). This terminology points to the purpose of clause 5.4 as facilitating an employee
who is a casual employee, and thus has “no ongoing guarantee of work”, moving in
prescribed circumstances to the greater security of ongoing or “permanent” employment
(whether full-time or part-time). The model of part-time employment posited in the decision
simply cannot stand together with the description of part-time employment in clause 5.4 as
being permanent in nature. It may also be noted that clause 31(e) and item 1 of Schedule 1
both refer to full-time and part-time employees collectively as “Permanent Employees”, and
for the same reason this cannot be reconciled with the approach taken in the decision.
[38] Fourth, clause 9 has the effect that new part-time weekly hire employees under the
Agreement would be appointed initially for a qualifying period of six months. That such
employees would be “appointed initially” for a qualifying period during which employment
may be terminated on one week’s notice for unsatisfactory performance, strongly suggests as
a corollary that employment beyond the qualifying period would be permanent or ongoing.
This is inconsistent with the construction adopted by the Deputy President. On the
construction favoured by the Deputy President, clause 9 has no sensible work to do as
engagement or employment of both part-time and full-time employees is by and for the week
with no ongoing commitment to further periods of employment. Clause 9 therefore also
cannot be reconciled with the approach taken in the decision
[39] Fifth, clauses 12.1, 12.3 and 12.4 provide that any non-casual employee (that is,
including any part-time employee) must be terminated with the specified periods of notice
unless dismissed without notice for serious misconduct pursuant to clause 12.2. However, if a
part-time employee is, effectively, engaged pursuant to a series of weekly fixed term
contracts, a requirement for the provision of notice serves no purpose and is rendered
[2021] FWCFB 532
14
nugatory. If an employer is not required to make an offer of any hours of work for any future
week, then the need to terminate a part-time employee would never arise. Clause 12 is
therefore also directly inconsistent with the model of part-time employment posited in the
decision.
[40] Sixth, the provision for severance pay in clause 14, which is clearly intended to apply
to part-time as well as full-time employees since it is stated in clause 14.1 to be applicable to
all employees other than casuals, is not reconcilable with the model of part-time employment
posited in the decision. As with the notice provision, the notion of termination for redundancy
is rendered nugatory for part-time employees if they are in all cases engaged and re-engaged
by the week. Further, the notion of “weeks’ pay” upon which the severance pay scale is based
would be unquantifiable and unworkable for part-time employees if they have no standard
number of ordinary working hours per week.
[41] Seventh, the Agreement provides in clauses 23.1 and 24.1 respectively for entitlements
to 4 weeks’ annual leave and 10 days’ personal leave for full-time employees. Clauses 23.2
and 24.2 respectively provide for such entitlements to apply to part-time employees on a pro-
rata basis based on their ordinary hours of work. However, on the approach taken in the
decision, part-time employees would not have any standard ordinary hours, and accordingly it
is not practically possible for a week’s annual leave or a day’s personal leave to be calculated
and paid on a pro-rata basis when the leave is taken. For example, on the Deputy President’s
construction, a part time employee about to commence a period of two weeks of annual leave
would not have any specified hours of work for those weeks because the specified number for
each week are determined from week to week. The specified hours, according to the decision,
are agreed between the employer and the employee each week - the employer offers them and
the employees either accept or reject them. No hours are worked when the employee is on
annual leave, so none are the specified for the period of annual leave. How then is the number
of leave hours to be taken determined?
[42] It is necessary for an alternative interpretation of clause 5.2 to be identified which is
available on the text of the provision but operates consistently and harmoniously with the
other provisions of the Agreement. We start with the expression “weekly hire”. We accept the
AMIEU’s submission that, considered in its historical industrial context, this expression is a
term of art (albeit an anachronistic one) which refers to “weekly” or “permanent” employment
in the sense to which we have earlier referred. The use of the expression may be traced at least
as far back as the first metal industry award made by the Commonwealth Court of
Conciliation and Arbitration (Higgins J, President) in 1921.16 Clause 12 of that award was
entitled “Weekly Hiring”, and paragraph (a) of the clause provided:
12.(a) Except as to the casual employees referred to in clause 1 the employment is
terminable on either side by one week’s notice given on any day of (if the employer
terminate it) by payment of one week’s pay. But for the first fourteen days of
employment the hiring shall be from day to day and during this period a day’s notice
or a day’s pay shall be sufficient.17
16 (1921) 15 CAR 297
17 Ibid at 338
[2021] FWCFB 532
15
[43] Clause 12(d) of the same award confirmed that the clause was not to affect the right to
dismiss for misconduct.18
[44] In his decision making this award, Higgins J said:
“The claim is for weekly rates with one week’s notice on either side before termination
of employment…I have often expressed myself in favour of weekly employment in all
cases where the nature of the business makes it practicable…The employment of
engineers is regular and fairly permanent. Men keep at the same undertaking day after
day, week after week, even year after year; and even if work is not ready for them …
or if they lose an hour, even five minutes in some cases, they lose their pay. There is
nothing that steady family men desire more than constant work, and some certainty as
to their income for a week or more ahead. My wages – basic and secondary – are
awarded on the assumption that the employment is regular; and if the work is casual,
not regular…I award more per hour than in the case of regular work… Under weekly
wages the employee tends to identify himself with the particular undertaking, to feel
interested in the concern, and it takes much more to induce him to throw up a job if it
is constant. It is in the interest of the employers as well as in the interests of the
employees that the employment should not be casual, that a man should not feel
himself to be a piece of flotsam or jetsam in the industry – that he should have a sense
of homeship in the concern”.19
[45] It is apparent therefore that the expression “weekly hire” was used as a reference to
ongoing employment (at that time understood only to be full-time in nature) on a fixed
weekly wage which was terminable on a week’s notice, subject to the completion of a
probationary period in which a shorter period of notice might apply and reserving the right of
the employer to dismiss summarily for misconduct. It also operated, as the above clause made
clear, in contradistinction to casual employment. The expression was used in that sense in
federal awards and arbitral decisions across a range of industries for many decades thereafter.
As earlier discussed, the use of the expressions “weekly employment” and “weekly hire” to
describe “permanent” employment fell into disuse after the statutory prescription for notice
periods in excess of a week for employees with more than one year’s service was introduced
by the Industrial Relations Reform Act 1993. Nonetheless the historical connection remained,
as was recognised by a Full Bench of the Australian Industrial Relations Commission (AIRC)
in Re Metal, Engineering and Associated Industries Award 1998 – Part I when, in relation to
that award, it described full-time employment under that award as “the lineal descendant of
weekly hire employment under the predecessor awards”.20
[46] The expression “weekly hire” was used in the context of the meat industry in the same
way. For example, in 1992 a Full Bench of the AIRC conducted an inquiry into the Meat
Industry pursuant to s 107 of the Industrial Relations Act 1988. The report of that inquiry21
discussed in some detail, under the heading “Contract of Employment”, the modes of
engagement in the meat industry having regard to the issues of irregularity and seasonality of
work. It is apparent from the report that the AIRC, and all parties in their submissions, used
the expression “weekly hire” interchangeably with “permanent employment” and “weekly
18 Ibid at 339
19 Ibid at 319
20 [2000] AIRC 722, 110 IR 247 at [10]
21 [1992] 6 CAR 278
[2021] FWCFB 532
16
employment” to refer to full-time employment throughout. It is sufficient in this respect to
refer to the following conclusion of the Full Bench (underlining added):
“Weekly employment on a permanent basis should be encouraged. In principle, and
where practicable, employers should be able to engage employees on weekly hire,
with casual or part-time employees providing the necessary flexibility to meet
fluctuations in demand in the processing sector.” 22
[47] The historical context also indicates that the expression “engaged by the week” used in
clause 5.2(b) is also to be understood as a term of art referring to weekly or permanent
employment. As early as the 1920s, this expression or the similar expression “employed by
the week” was used in awards and agreements as a standard formulation to describe ongoing
employment terminable on a week’s notice. For example, an award made in respect of wool
workers in 1920 provided (underlining added):
Engagement
7. All employees other than piece-workers shall be employed by the week and, shall
not be dismissed or have their employment terminated for other than their own
misconduct without receiving at least one week’s notice of the employer’s intent to
terminate such employment and in default shall be entitled to one week’s wages as
herein provided. Employees shall likewise not terminate their employment with the
employer without giving one week’s notice to the employer of their intent so to do or
in default of such notice shall forfeit to the employer one week’s pay as herein
provided.23
[48] Similarly, a storemen and packers award made in 1927 relevantly provided
(underlining added):
4. Terms of Engagement.
(a) Employees are to be engaged as weekly or casual hands. A weekly employee is
one engaged by the week, and paid by the week, and whose engagement shall be
terminable by one week’s notice on either side, notice not to be continued from week
to week.
(b) Such notice shall be given on and take effect from pay day, or, in lieu of such
notice, a week’s pay shall be given.24
[49] Similar terminology was used in respect of early instances of award provisions for
part-time employment. For example, clause 6(b)(i) of the Metal Trades Award 1952, as
consolidated in 1979, provided for female part-time employment in the following terms
(underlining added):
Part Time Employment of Females
22 Ibid at 290
23 (1920) 14 CAR 288 at 294
24 (1927) 25 CAR 1212 at 1213
[2021] FWCFB 532
17
(b) (i) A female employee may be engaged by the week to work on a part-time basis
for a constant number of hours less than forty each week. A female so engaged shall
be paid per hour one-fortieth of the weekly rate prescribed by this Division for the
work she performs.25
[50] Awards applicable to the meat industry used the same terminology. Clause 6 of the
Federal Meat Industry Award 1981 provided:
6 – Contract of Employment
(a) Except as hereinafter provided, employment shall be by the week. Any employee
not specifically engaged as a casual employee shall be deemed to be employed by the
week. Except as may hereinafter be provided an employee, to become entitled to
payment on a weekly basis, shall perform such work as the employer shall from time
to time require on the days and during the hours usually worked by the class of
employee affected.
(b) Employment other than casual shall be terminated only by a week's notice on either
side, and such notice may be given at any time during the week, but if given at any
time within the employee's rostered working hours shall apply from the rostered
finishing time for the day except where payment is made in lieu of notice, in which
case time is calculated from the time of the notice. In lieu of such 40 working hours'
notice the employer may pay 40 hours' wages, and vice versa the employee leaving his
or her employment without notice shall forfeit 40 hours' wages, which may be
deducted from wages (other than wages for annual leave accrued but not taken and/or
proportionate annual leave due) due.
This shall not affect the right of an employer to dismiss an employee without notice
for malingering, inefficiency, neglect of duty or misconduct, in which case wages shall
be paid up to the time of dismissal only, or to deduct payment for any day on which an
employee cannot be usefully employed, because of any strike other than in the meat
industry or through any breakdown of machinery or any stoppage of work in the meat
industry by any cause for which the employer cannot reasonably be held responsible,
or for any day or part of a day on which an employee cannot be usefully employed
because of any strike in the meat industry.
(c) An employee not attending for duty shall, except as provided by clause 22 of this
award, lose his pay for the actual time of such nonattendance.26
[51] The Federal Meat Industry (Processing) Award 199627 provided separately for full-
time employment, part-time employment and casual employment categories. However, clause
19.1.1 of that award still described full-time employment as being “employment…by the
week”. The same terminology was not used for part-time employees in clause 19.3, which was
drafted in more contemporary terms, but clause 19.4.2 made it clear that part-time employees
were to receive all the entitlements of full-time employees on a pro-rata basis. It was not until
25 (1979) 226 CAR 3 at 122
26 (1982) 278 CAR 174 at 177
27 Print N7479
[2021] FWCFB 532
18
the Federal Meat Industry (Processing) Award 2000 that the terminology of employment or
engagement by the week was removed.28
[52] However, this terminology continued to be used in enterprise agreements applicable to
Diamond Valley. The first such agreement that can be identified is an agreement entitled
Enterprise Agreement Diamond Valley Pork Pty Ltd Meat Processing, approved by the
Commission pursuant to the FW Act on 8 July 201029 (2010 Agreement). Clauses 5.1(a) and
5.3 referred to full-time and part-time employees respectively as being “engaged by the
week”. That this expression did not bear the meaning in the 2010 Agreement which the
Deputy President ascribed to it in the current Agreement is shown by the fact that, under the
2010 Agreement, full-time employees are employed for 38 hours per week and are described
as “full time permanent” positions in clause 5.2, and both categories of employment were
entitled to notice of termination (clause 11.3) and severance pay (clause 12). The same
provisions were reproduced in the following two agreements, the Enterprise Agreement
Diamond Valley Pork Pty Ltd Meat Processing approved on 17 July 201330 (2013
Agreement) and the 2017 Agreement.
[53] Full-time employees ceased being described as “engaged by the week” in the current
Agreement but, as earlier discussed, this was replaced with the equally out-of-date expression
“weekly hire”. Part-time employees continued to be referred to as “engaged by the week”, but
the expression “weekly hire” was added. Although there is an element of tautology involved,
for the reasons given we consider that the words “engaged by the week as a part-time weekly
hire employee” are to be read as referring to part-time employees engaged on an ongoing or
“permanent” basis on a fixed weekly wage whose employment is terminable only in
accordance with clause 12.
[54] Once any notion of part-time employees being re-engaged each week (or not) is
removed, the proper construction of clause 5.2 becomes a relatively straightforward matter.
Clause 5.2(b) provides that part-time employees are to work “on a regular basis”, and content
is given to this by the requirement that they have a “specified minimum number of hours each
week”. Consistent with the usual conception of part-time employment and the historic concept
of weekly hire, and on the ordinary meaning of the words used (noting that “each” means
“every, of two or more considered individually or one by one”31), this is to be understood as
meaning that there must be a minimum number of hours that is specified uniformly for every
week of the employment. Clause 5.2(f) indicates that this minimum number of hours is to be
arrived at by mutual agreement between the employer and the employee. This is consistent
with clause 5.4(j), which requires agreement in respect of a conversion from casual to part-
time employment.
[55] Clause 5.2(e) has different work to do. Rather than referring to the “minimum number
of hours” as does clause 5.2(b), it refers to the “pattern of work”. This quite different
expression refers, we consider, to the day and times upon which the minimum number of
hours are to be worked. Thus, although the number of ordinary part-time hours is fixed, the
employer has the flexibility to alter when those hours are to be worked from week to week.
This operates subject to paragraphs (b) and (c) of clause 5.6, which require ordinary hours to
28 Print T2950
29 [2010] FWAA 5001
30 [2013] FWCA 4768
31 Macquarie Dictionary
[2021] FWCFB 532
19
be rostered from 5.00am to 7.00pm, Monday to Friday. It also operates subject to the four
hour daily minimum provided for in clause 5.2(d).
[56] The construction we prefer overcomes the difficulties we have earlier identified in
respect of the approach taken in the decision at first instance. It aligns the concepts of full-
time and part-time employment as involving ongoing employment on a fixed weekly wage, it
gives effect to the evident purpose of the casual conversion clause to allow casual employees
to move to more secure “permanent” employment, and it is conceptually consistent with the
provisions concerning notice, severance pay and leave entitlements.
[57] The approach we prefer also renders clause 5.2 of the Agreement broadly consistent
with clause 10 of the Award, which we have earlier set out. We consider that clause 13 of the
Award required, in all cases, that a part-time employee have a fixed number of ordinary hours
applicable to each week of employment. This requirement is discernible from the following
provisions of the Award, operating in combination:
clause 13.2(a) requires a part-time employee to be engaged to work less than 38 hours
per week, which we consider to mean engaged to work a number of hours per week
that is less than 38;
clause 13.2(b) requires that a part-time employee have reasonable predictable hours of
work;
clause 13.5 assumes the existence of an agreement concerning part-time employment,
which we consider would necessarily deal at least with the specification of the number
of ordinary hours of employment; and
clause 13.6, in providing that overtime is payable for all time worked “in excess of the
hours as mutually agreed”, also necessarily assumes the existence of a mutual
agreement concerning the number of ordinary hours each week.
[58] As the Deputy President observed, clause 13.4 provides, subject to exceptions which
are not presently relevant, that clause 13.3 does not apply to meat processing establishments.
However, clause 13.3 does not deal with the minimum weekly ordinary hours of a part-time
employee but rather a requirement for agreement concerning a “regular pattern of work”,
which paragraphs (a)-(d) disclose consists of the number of hours to be worked in each day,
the days of the week the employee will work, the starting and finishing times each day, and
the minimum daily engagement of hours. Clause 5.2 of the Agreement and clause 13 of the
Award, as applicable to meat processing establishments, are therefore broadly aligned in the
sense that they both require that a part-time employee have a fixed number of ordinary hours
each week, but allow the employer the flexibility to establish the pattern of days and times
during the week when such hours are to be worked, subject to the requirement of reasonable
predictability and a minimum daily engagement of 4 hours.
[59] The significance of this is that clause 5.2 of the Agreement, as we construe it, is not
less beneficial than clause 13 of the Award and therefore could not properly have given rise to
a detriment necessary to be considered at the time of the approval of the Agreement for the
purpose of the BOOT. This position is consistent with the statutory declaration filed by
[2021] FWCFB 532
20
Diamond Valley in support of its application for approval of the Agreement,32 which stated
that there were no provisions of the Agreement that were less beneficial than the equivalent
terms of the Award. While we agree with the Deputy President that a proceeding under s 739
cannot properly entail a reconsideration of the BOOT, an interpretation of a provision of an
agreement with a contested meaning may be favoured if it is consistent with the basis upon
which the agreement was approved by the Commission. In this respect, the difficulty with the
construction of clause 5.2 adopted in the decision under appeal is that it would clearly render
the clause significantly less beneficial than clause 13 of the Award, and would thereby call
into question the veracity of the declaration filed in support of the approval of the Agreement.
[60] Once the nature of part-time employment under clause 5.2 is properly understood,
clause 5.2(f) affords a straightforward answer to the issue in dispute concerning the
entitlement of part-time employees to overtime. It provides in unambiguous terms that any
hours worked in excess of the part-time employee’s agreed minimum weekly hours will be
overtime, thus attracting the overtime penalty rates in clauses 7.3-7.5. The logic behind this
prescription is revealed by clause 7.1, which (subject to s 62(3) of the FW Act) allows the
employer to require an employee to work an additional half-hour each weekday and 12
Saturdays per year.
[61] Diamond Valley’s contention that a part-time employee may, if they agree to work
additional hours, be paid at ordinary time until 38 hours have been worked in the week, finds
no support in the text of the Agreement (and indeed Diamond Valley cites no provision of the
Agreement in support of its submission to that effect). Clause 8, which deals with the
situation where an employee requests to work additional hours, directly contradicts Diamond
Valley’s submission in that it requires that overtime be paid in respect of such additional
hours.
[62] That disposes of the matters that strictly arise for consideration in this appeal.
However, we consider it to be convenient and useful to comment upon one aspect of the
operation of the casual conversion clause of the Agreement which is referred to in the Deputy
President’s reasons and the AMIEU’s submissions. Clause 5.4(b) provides that, in order for a
casual employee to be eligible for (relevantly) conversion to part-time employment, the
employee must have in the preceding 12 months have worked a pattern of hours which could,
without significant adjustment, be performed by a part-time employee under the Agreement.
The existence of clause 5.4(b) presupposes that some casual employees will not be eligible for
conversion, otherwise the provision would serve no purpose. Because clause 5.2, properly
construed, requires a part-time employee to have a fixed weekly number of ordinary hours, it
seems to us that an eligible casual employee must have worked a minimum number of hours
per week that is reasonably stable in order that conversion to part-time employment at that
number of hours can occur without a “significant adjustment” being required. What
constitutes a significant adjustment in any individual case will depend upon the particular
circumstances, but it is clear enough that the average number of weekly hours worked across
the 12 month period will not necessarily translate to part-time employment at that number of
hours if the number of hours worked in each week during the 12 month period radically
diverge from week to week. However, conversion may in that situation be available on the
basis of a number of weekly hours that is lower than the average.
Conclusion
32 Statutory declaration of Klint Thompson, Production Manager, dated 14 November 2019
[2021] FWCFB 532
21
[63] The appeal is determined as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The decision ([2020] FWC 5286) is quashed.
(4) In substitution for the determination in the decision, we determine that:
(a) Part-time employees must, under the Agreement, have a fixed number
of minimum weekly ordinary hours for all weeks of employment that is
mutually agreed at the commencement of part-time employment or
subsequently agreed in writing.
(b) All work performed in excess of the agreed minimum weekly ordinary
hours must be paid as overtime.
VICE PRESIDENT
Determined on the basis of written submissions.
Printed by authority of the Commonwealth Government Printer
PR726630
OF THE FAIR WORK MISSION THE
