1
Fair Work Act 2009
s.739—Dispute resolution
CPSU, the Community and Public Sector Union
v
Australian Broadcasting Corporation
(C2022/5631)
COMMISSIONER MCKINNON SYDNEY, 19 DECEMBER 2022
Alleged dispute about enterprise agreement terms – what is a “compensation mechanism” for
the purposes of clause 24.4 of the ABC Enterprise Agreement 2019-2022 – calculation of
overtime rate
[1] The CPSU, the Community and Public Sector Union is in dispute with the Australian
Broadcasting Corporation (ABC) about how current on call and related overtime arrangements
for information technology (IT) employees interact with the ABC Enterprise Agreement 2019-
2022 (the 2019 Agreement). The 2019 Agreement is a single enterprise agreement made
between the ABC and its employees, and the Union is covered by the 2019 Agreement.
[2] After attempts to reach agreement were unsuccessful, the Union applied to the
Commission to deal with the dispute under section 739 of the Fair Work Act 2009 (FW Act).
The arrangements in dispute have been in place in one form or another since 1996 and have
largely been uncontroversial, although at times they have also been a source of discontent.
[3] The questions for determination, and my answers, are these:
“Question 1: Is the document known as “On Call/Overtime Arrangements for IT” a
compensation mechanism for the purposes of clause 24.4 of the ABC Enterprise
Agreement 2019-2022.
Answer: No.
Question 2: How does a compensation mechanism established in accordance with
clause 24.4 of the 2019 Agreement interact with other provisions of the 2019 Agreement
conferring entitlements on employees, including overtime, minimum breaks between
shifts and Rostered Free Days (RFDs)?
Answer: Unless it is also an individual flexibility arrangement, a compensation
mechanism established under clause 24.4 of the 2019 Agreement can supplement, but
not displace, the terms of the 2019 Agreement, including those dealing with overtime,
minimum breaks between shifts and rostered free days.
[2022] FWC 3316
DECISION
AUSTRALIA FairWork Commission
[2022] FWC 3316
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Question 3: Separately, having regard to clause 24.3.2 of the 2019 Agreement, if an
employee is engaged and paid at or above point 31 and in receipt of a market allowance,
must the ABC take into account that employee’s market allowance in the calculation of
the applicable overtime rate?
Answer: No, subject to the terms of any contract of employment, individual
flexibility agreement, salary package or buyout arrangement.
[4] These are my reasons.
The 2019 Agreement
[5] Section 739 of the FW Act empowers the Commission to deal with certain disputes
under enterprise agreement dispute settlement terms. The 2019 Agreement contains a dispute
settlement term at clause 60. The dispute settlement term has been followed and the
Commission has jurisdiction to arbitrate the dispute under the 2019 Agreement.
[6] The 2019 Agreement rescinds and replaces earlier collective agreements including the
ABC Enterprise Agreement 2016-2019, whether registered or certified or not. It displaces and
operates to the exclusion of any other collective instruments, including the Australian
Broadcasting Corporation Enterprise Award 2016 and the Broadcasting and Recorded
Entertainment and Cinemas Award 2010. It prevails over inconsistent provisions in the
Australian Broadcasting Corporation Act 1983 (Cth) and its subordinate rules and regulations.
It is supported by ABC policies, procedures and guidelines as advised and amended from time
to time although they do not form part of the 2019 Agreement. In the event of inconsistency
with policies, procedures and guidelines, the 2019 Agreement prevails.
[7] Clause 24 of the 2019 Agreement deals with “general conditions relating to hours,
penalties and overtime”. It applies to all employees to the extent applicable and is to be read in
conjunction with other terms of the 2019 Agreement dealing with hours of work, penalties and
overtime (specifically, clauses 25, 26 and 27).
[8] Clause 24.2 of the 2019 Agreement details the manner of calculating an employee’s
hours of work, which must be continuous unless the employee is on a distant assignment.
Unpaid meal breaks form part of an employee’s continuous ordinary hours each day, and travel
time between locations is counted as time worked.
[9] Clause 24.3 deals with general overtime conditions. Clause 24.3.1 provides that
employees may be required to, and shall, work reasonable overtime as required (and subject to
the National Employment Standards). Overtime must be approved in advance by a manager, or
subsequently in writing if advance approval cannot be obtained.
[10] Clause 24.3.2 of the 2019 Agreement provides for a maximum overtime rate:
“a. Overtime payments are calculated on the basis of the employee's ordinary rate of pay,
provided that:
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i. if the rate is in excess of ABC salary point 31, payments will be based on ABC
salary point 31; and
ii. for the purpose of calculating a salary package, an individual flexibility
arrangement or a buyout arrangement, the additional payments prescribed in
this subclause will be calculated on the employee's minimum rate of pay under
this Agreement and market allowance, if any.”
[11] Clause 24.3.3 then sets out the method of calculation for overtime. An employee's salary
for the purpose of computation of overtime includes any allowance specified to count as salary.
There is a formula for the calculation of the overtime hourly rate. No overtime is payable unless
the excess duty totals 15 minutes or more.
[12] Clause 24.3.4 provides for minimum overtime payments, except for in the case of
“emergency duty”. If overtime is not continuous with ordinary duty, the minimum payment for
each separate overtime attendance will be 4 hours at overtime rates. Meal periods are not
counted for the purpose of determining whether overtime is continuous with ordinary time. If
overtime that is not continuous with ordinary time involves work both before and after
midnight, and one of the days on which overtime is worked attracts a higher overtime rate, the
minimum overtime payment is calculated at the higher rate.
[13] Clause 24.4 of the 2019 Agreement deals with out of hours contact (otherwise described
as “on call”). It provides as follows:
“24.4 Out of Hours Contact (On Call)
24.4.1 The ABC recognises that a marked variation in 'out of hours' contact and return
to work situations may occur across the ABC.
24.4.2 Where warranted, the ABC will establish, by agreement with affected
employees, a compensation mechanism based upon the nature of the contact
circumstances and the incidence of call-back requirements.
[14] Clause 24.5 of the 2019 Agreement limits additional payments to a total maximum rate
of double time, or double time and a half for work on public holidays.
[15] Under the 2019 Agreement, an employee can be employed under one of three streams:
Schedule A (Non-Rostered); Schedule A (Rostered) and Schedule B (Rostered). A rostered
employee can work on any day, Monday to Sunday, as set out in a roster. A non-rostered
employee generally works Monday to Friday, during the day. Each stream differs in the
approach to salary, hours of work, penalties, annual leave and public holiday arrangements. The
stream that applies to a particular employee is determined by agreement between the ABC and
the employee.
[16] Clause 25 of the 2019 Agreement deals with the hours of work and penalty provisions
for “Schedule A Non-Rostered Employees”. Clause 25.6 of the 2019 Agreement deals with
Emergency Duty. It provides that where an employee is required to attend work and deal with
an emergency at a time they would not normally be at work without prior notice, the emergency
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duty will be paid at double time, including time spent travelling to and from work, and with a
minimum payment for 2 hours.
[17] Clause 26 of the 2019 Agreement deals with the hours of work and penalty provisions
for “Schedule A Rostered Employees”.
[18] Clause 27 of the 2019 Agreement deals with the hours of work and penalty provisions
for Schedule B Rostered Employees.
The history of “on call” arrangements at the ABC
[19] The origins of clause 24.4 of the 2019 Agreement can be traced back to 1994.
[20] On 30 March 1994, the Australian Industrial Relations Commission (AIRC) certified
the ABC Radio Technical Service Officers - Alphatec (PSU) On Call Agreement 1994 (1994
On-Call Agreement) under s.35(2)(c)(ii) of the Industrial Relations Reform Act 1993 (IR
Act). The certification application was made under s.134C of the IR Act between the ABC
and the Union (then known as the Public Sector, Professional, Scientific Research, Technical,
Communications, Aviation and Broadcasting Union (or PSU)).
[21] The 1994 On-Call Agreement did not apply to the IT employees affected by this
dispute. It applied instead to technical employees working on the ABC’s radio network.
Clause 6(a) of the 1994 On-Call Agreement provided for a daily on-call allowance and
additional payments “at the appropriate overtime rate” for working while on call. Overtime
arrangements varied according to whether work was performed on site or away from the
employee’s place of work, with a minimum payment of 1 hour (not returning to work) or
3 hours (including travel time to and from the job).
[22] On 22 January 1996, the ABC announced changes to “oncall payments and
procedures” for Level 1 and 2 IT employees (the 1996 Oncall Payments Process). These
changes took effect on 5 February 1996, with a new payment structure for on call duties that
replaced a Market Allowance paid to affected employees. The 1996 Oncall Payments Process
largely extended the benefits of the 1994 On-Call Agreement to IT employees. The changes
were accepted by the relevant employees, if not expressly, then by performance.
[23] The IR Act was replaced by the Workplace Relations Act 1996 (WR Act) on 1 January
1997. On 13 January 1997, the AIRC certified the ABC Radio Technical (CPSU) On Call
Agreement 1996 (1996 On-Call Agreement) under s.170MA of the WR Act. Clause 9 of the
1996 On-Call Agreement was similar to the 1994 On-Call Agreement but contained more
detailed rules about payment for “On Call Duty”, including higher daily on call allowances. It
retained minimum engagement provisions for overtime to be paid, again “at the appropriate
overtime rate”. In practice, the 1996 On-Call Agreement provided for a usual weekly on-call
allowance of $200, comprising $20 per weekday night, and $50 per weekend day.
[24] The higher rate of on call allowances provided for in the 1996 On-Call Agreement was
adopted for ABC IT staff performing on call work on and from 20 January 1997. This was done
on the basis that while the ABC was “not obliged to adopt the new rates”, it considered that
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rates for on call obligations “should be the same across the ABC”. The increased rates were
again accepted by the relevant employees, if not expressly, by performance.
[25] On 20 June 2000, the AIRC certified the ABC Employment Agreement 2000-2002 (2000
Agreement) under s.170LT of the WR Act. The 2000 Agreement was comprehensive in that it
replaced and terminated 6 earlier ABC industrial agreements and prevailed over 5 named ABC
industrial awards to the extent of inconsistency. While it did not replace the 1996 On-Call
Agreement, nothing turns on this in circumstances where the 1996 On-Call Agreement did not
apply to the group of employees affected by this dispute.
[26] Clause 32.8 of the 2000 Agreement was in the same terms as what is now clause 24.4
of the 2019 Agreement. It was the first of a series of collective agreements replicating the term
from 2000 to 2019: in the ABC Employment Agreement 2003-20061 (clause 28.7); the ABC
Employment Agreement 2006-20102 (clause 25.7); the ABC Enterprise Agreement 2013-20163
(clause 25.4) and the ABC Enterprise Agreement 2016-2019 (clause 24.4) 4.
[27] During that period, over the course of 2004 and 2005, the ABC and IT employees
engaged in ongoing dialogue about the on call arrangements. On 27 August 2004, a guide was
circulated to “help people understand how the different scenarios of overtime were entered into
the roster, and at what rate they get paid”.5 The guide was titled On call/Overtime Arrangements
for IT (the Guidelines). The Guidelines are the document to which question 1 of this dispute
refers.
[28] Before being sent to employees, the Guidelines were reviewed by the ABC’s human
resources (HR) team. HR agreed that the Guidelines were consistent with the ABC Employment
Agreement 2003-2006 (2003 Agreement), although it noted some variations that were said to
be “within the guidelines”. It is not apparent what these separate guidelines were or what their
status was. They cannot have been the Guidelines that are the subject of this decision, because
it would be nonsensical to agree that a document was consistent (or inconsistent) with itself. It
might have been the ABC’s then applicable “overtime guidelines”, or the “Red Book” referred
to in the evidence of Yoges Chelliah but not produced. It is not necessary to resolve the
uncertainty to resolve the dispute.
[29] On 19 December 2005, the ABC proposed increasing the on-call allowance for IT
employees from $200 to $300 per week ($30 per weekday night, and $75 per weekend day).
The proposal involved offering the increase to “all IT staff providing on-call services”. It can
be inferred that the proposal was approved by relevant management, because a meeting was
then scheduled with IT employees about the proposal on 23 February 2006. Only one of the
affected employees attended the meeting. In the absence of objection, the ABC advised
employees that it would proceed to increase the rate of on call allowance for IT staff with effect
from 6 March 2006. This time, the changes were accepted by the employees by performance. I
infer that the changes were also accepted by the Union given its expressed view (albeit two
1 A certified agreement made under s.170LT of the WR Act.
2 A workplace agreement made under s.328 of the WR Act.
3 An enterprise agreement made under s.185 of the FW Act.
4 An enterprise agreement made under s.185 of the FW Act.
5 Email from C Burgess to @IT_Comms_Services, 19 April 2005 at 12.07pm.
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years later, on 3 December 2008) that any changes to the arrangement could only be made by
further negotiation and agreement.
[30] The Union’s correspondence of 3 December 2008 was sent in response to a proposal by
the ABC to make further changes to the on call arrangements for IT employees. This would
have resulted in a substantial redrafting of the Guidelines. The proposal was resisted by
employees and fell away. Payment for on call duties instead continued on the same basis as it
had since 2006 (which other than higher allowance rates, meant continuing with the same
approach that had been in place since 1996).
[31] While little was made about it in the proceeding, there have also been three further, less
overt, developments in relation to the 1996 Oncall Payments Process since it was first
introduced. The first is that the practice of paying market allowances has returned, such that
employees may now have the benefit of both market allowances and the updated 1996 Oncall
Payments Process. The second is that the status of the Guidelines has been elevated above its
function – which was simply to illustrate how the 1996 Oncall Payments Process applied in
practice having regard to the terms of the relevant industrial instrument. Related to this is the
third development, which is that the ABC’s interpretation of the 1996 Oncall Payments Process
has changed, most likely due to an unintentional misreading when the Guidelines were prepared
in 2004. It is this latter change that lies at the heart of this dispute.
[32] The 1996 Oncall Payments Process is in the following terms, with minor changes for
readability:
“Staff who are required to provide oncall support will be paid a weekday/night and
weekend rate for those weeks which they are oncall only:
the rates being weekday/night $8.50 and the $17.00 for each weekend day.
Payment will be made irrespective of calls being received.
Payment will be made to staff who are required to provide level 1 or 2 support (in 1996,
this meant IT Hotline, VoiceNet, Data Net, NewsCaff SMS and SMS staff).
In the event of a call being received additional payment will be made at the following
rates,
Call lasting 0 minutes to 1 hour 1 hour overtime rate
Calls received within the same
hour
No additional payment
Call taking longer than 1 hour Payment made for the duration of
call
Calls that cannot be fixed
remotely and requiring return to
base
Payment at minimum 3 hours,
longer if required. Clock starts at
time call received and stops when
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officer returns home or where
appropriate.
No remuneration for management positions with the exception of the User Support
Manager. User Support Manager is required to provide Level 2 support in areas not
covered by other Level 2 specialists.
All entries will be entered into STAR and payment made automatically, staff will be
responsible for informing the STAR Rosterer that they have provided the service and
any hours which are to be claimed.
Staff who are currently receiving a Market Allowance will have that removed and
replaced by this process. This will take effect from February 5, 1996.”
[33] The minimum payment periods for call outs in the 1996 Oncall Payments Process are
the same as those in the 1994 On-Call Agreement, which applied at the time the 1996 Oncall
Payments Process was adopted. When the Guidelines were later developed in 2004, the
minimum payment period for on site attendances was increased in line with the 2003
Agreement. No adjustment was made to the minimum payment period for on call duties that
could be fixed from home.
[34] It is likely that this is because the parties understood the minimum overtime engagement
periods in the 2003 Agreement, like those in the 2000 Agreement that it replaced, to only apply
to work performed on site. The entitlement was described as one that applied to “overtime
attendance” (clause 28.5.4), or in the case of emergency duty, where there was a requirement
to “attend work and deal with an emergency” (clause 28.6). There was no separate provision
for payment for contact made outside of hours where no attendance at work was required,
except through the contemplated “compensation mechanism” for out of hours contact (on call)
then found in clause 28.7. The relationship between performance of work and attendance on
site, including the words “overtime attendance” and “attendance” appear to have their origins
in the Public Sector (Australian Broadcasting Corporation) (Interim) Award 1992 (see for
example, clause 52(g), clause 55 and clause 86) as well as clause 92 which expressly counts
“time necessarily spent in travelling to and from duty” as time worked.
[35] The Guidelines contain a table of overtime scenarios, each with a related “entitlement”
and “rate of payment”. The first 5 scenarios in the table deal with problems that can be fixed
“from home” in an anticipated period of less than 3 hours. The rate of payment for these
scenarios is accordingly time and a half: the rate that applies in the 2003 Agreement for
overtime of up to 3 hours. The next 2 scenarios deal with problems that can only be fixed by
attending on site. These are remunerated at time and a half for the first 3 hours, and double time
thereafter, with a minimum payment of 4 hours for each overtime “attendance”, consistent with
the 2003 Agreement.
[36] Despite being intended to clarify the position, the Guidelines developed in 2004 did not
clearly state how they interacted either with the 1996 Oncall Payments Process or the 2003
Agreement. Preparing the Guidelines involved translating the content of the 1996 Oncall
Payments Process into a more detailed table of scenarios and entitlements. It appears that in the
translation process, a misreading of the first row of the 1996 Oncall Payments Process occurred
[2022] FWC 3316
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in the section describing overtime rates that applied to particular scenarios. The first row states
that for a call lasting 0 minutes to 1 hour, the entitlement is “1 hour overtime rate”. In 2005, the
ABC explained these words as a reference to the “standard overtime rate, which is time and a
half”6 instead of what it meant, which was a minimum “1 hour” payment at the appropriate
overtime rate (consistent with the 1996 On-Call Agreement, which applied when the 1996
Oncall Payments Process was introduced).
[37] This misinterpretation became embedded in the Guidelines and led to the drawing of a
distinction between how overtime applied to on call duties performed remotely and those
performed on site. While overtime duties performed on site continued to be paid in accordance
with the 2003 Agreement, on call duties performed at home were treated differently. The rate
of overtime payable for these duties was capped at time and a half. The error was only material
for duties lasting more than 3 hours, when the appropriate overtime rate increased to double
time. But it represented a departure from the practice of applying the 1996 Oncall Payments
Process in a way that was consistent with the prevailing industrial instrument. It would appear
that this became the prevailing practice, which still applies today.
[38] There is one other likely development of note since the 1996 Oncall Payments Process
was introduced. That is the extent to which the performance of on call duties has changed both
in terms of the nature and location of work performed. It seems likely that technology
improvements over the past 20 years have allowed for a greater proportion of IT support work
to be performed remotely than might once have been the case. This gives rise to the question of
whether “overtime attendance” in the 2019 Agreement should be given the same meaning as in
the 2000 Agreement, although that is for another day.
Consideration
Question 1 - Is the document known as “On Call/Overtime Arrangements for IT” a
compensation mechanism for the purposes of clause 24.4 of the 2019 Agreement?
[39] In light of the history of clause 24.4 of the 2019 Agreement as set out above, the answer
to this question must be “No”. The document known as On Call/Overtime Arrangements for IT
is no more than a guideline explaining the practical operation of the 1996 Oncall Payments
Process that took effect on 5 February 1996 and was later varied to increase the daily on-call
allowance with effect from 20 January 1997 and 6 March 2006.
[40] At the time it was established, the 1996 Oncall Payments Process was also not a
“compensation mechanism” for the purposes of clause 24.4 of the 2019 Agreement. It could
not have been, because the capacity to establish a compensation mechanism by agreement with
affected employees was first introduced four years after the first predecessor to clause 24.4
came into being with clause 32.8 of the 2000 Agreement.
[41] However, and as the ABC submits, it can be readily inferred from the history of clause
24.4 of the 2019 Agreement that upon re-enacting its terms in successive industrial agreements
since 2000, the relevant persons objectively intended that they would continue to allow for the
6 Email from C Burgess to S Jouravlev & @IT_Comms_Services, 19 April 2005 at 3.38pm.
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existence of arrangements that have existed for many years.7 An underlying premise to this
dispute is that employees wish to continue to receive payment of on-call allowance, despite
there being no entitlement to the allowance under the 2019 Agreement. The mechanism for this
to occur is, and has always, been, the 1996 Oncall Payments Process (as varied).
[42] As I have found above, adoption of the 1996 Oncall Payments Process has long been
agreed by the employees (who received the benefits of that process without demur) and by the
Union (which requires that it is not to be changed without further agreement). There is no
evidence that this agreement has been withdrawn. For this reason, I find the 1996 Oncall
Payments Process (as varied to 2006) to have been established by agreement with affected
employees as a compensation mechanism for the purposes of clause 24.4 of the 2019
Agreement. It is not necessary, as the Union contends, for such a mechanism to be newly
established each time an enterprise agreement is made. This is reading too much into the terms
of clause 24.4. The ABC and its employees can just as well agree to establish a mechanism
through which existing compensation of employees for on call duties will continue. In this case,
they have done so by performance of the 1996 Oncall Payments Process – in the case of the
ABC, by providing its benefits to affected employees, and for the employees, by receiving those
benefits in return for the performance of on call duties.
Question 2 - How does a compensation mechanism established in accordance with clause 24.4
of the 2019 Agreement interact with other provisions of the 2019 Agreement conferring
entitlements on employees, including overtime, minimum breaks between shifts and Rostered
Free Days (RFDs)?
[43] A compensation mechanism for the purposes of clause 24.4 of the 2019 Agreement is a
procedural device through which the ABC confers additional benefits to those contained in the
Agreement on employees whose role necessitates a higher than usual (or “marked”) level of out
of hours contact, which may include returning to work at short notice. The terms of the
compensation mechanism are to be put in place by agreement with affected employees. There
is no requirement for such agreement to be in any particular form. Once established, there is
also no reason to consider the mechanism extinguished by replacement of one enterprise
agreement for another, particularly if the actions of the parties point to the opposite conclusion.
[44] A compensation mechanism that allowed ABC and affected employees to agree on
terms that were less beneficial than the 2019 Agreement would give rise to a concern about
whether the better off overall test was met when the time came for it to be approved. This is
because it could not be said with certainty that employees in the affected group would be better
off overall than if the Award applied, if they had the capacity to vary terms and conditions of
the 2019 Agreement other than as provided for either in the 2019 Agreement or in the Act.
[45] The better view is that unless it is also an individual flexibility arrangement, a
compensation mechanism does not form part of the Agreement itself. This is consistent with
the history of clause 24.4, which confirms the underlying intention for a compensation
mechanism to operate alongside the applicable industrial instrument, supplementing but not
displacing its relevant terms. In this sense a compensation mechanism is more akin to a policy
or procedure, albeit one that requires the agreement of affected employees.
7 Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829, 318 ALR 54 at [37]-[41].
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[46] The content of a compensation mechanism is guided by its purpose, which is to
compensate for the requirement to stand ready for work, and to respond to contact made out of
hours at short notice, including by attending on site if necessary. Other than as provided in the
2019 Agreement, there is no limit on the content of a compensation mechanism, other than that
it be compensatory in nature, and tailored to the circumstances in question. The starting point
is what the 2019 Agreement already provides in relation to hours of work, relevant penalties
and overtime. This includes payment for overtime “at the appropriate rate” and minimum
engagement periods, subject to my earlier observations about whether payment for out of hours
contact not requiring attendance at work is dealt with under the relevant industrial instrument.
[47] In summary, a compensation mechanism for the purposes of clause 24.4 does not
exclude other terms of the 2019 Agreement. As a minimum, the terms of the Agreement apply
to affected employees. Once established under clause 24.4, a compensation mechanism
supplements the 2019 Agreement to provide additional compensation for employees having
regard to the particular on call requirements of their work area or function.
Question 3 - Separately, having regard to clause 24.3.2 of the 2019 Agreement, if an employee
is engaged and paid at or above point 31 and in receipt of a market allowance, must the ABC
take into account that employee’s market allowance in the calculation of the applicable
overtime rate?
[48] The answer to this question is also “No”. Clause 24.3.2 has a plain and ordinary
meaning. Under clause 24.3.2(a), overtime is calculated on the employee’s ordinary rate of pay,
capped at a maximum salary rate of ABC salary point 31. Clause 24.3.2(a)(ii) deals with the
separate issue of calculating a salary package or buyout arrangement under clause 21 of the
2019 Agreement, or an individual flexibility arrangement under clause 12 of the 2019
Agreement. These arrangements can vary or override terms of the Agreement in relation to
matters including hours of work and overtime but must leave an employee better off overall
than the employee would otherwise be under the terms and conditions of the 2019 Agreement.
This requires an assessment of what an employee would have been entitled to for the
prospective year based, as far as possible, on the pattern of hours they are expected to work.
[49] This is where clause 24.3.2(a)(ii) comes in. It requires market allowance to be factored
into the base salary before overtime is calculated – but for the limited purpose of calculating a
salary package, buyout or individual flexibility arrangement that will leave the employee better
off overall. The clause has no work to do in relation to employees to whom no salary package,
buyout arrangement or individual flexibility arrangement applies. The word “and” at the end
of clause 24.3.2(a)(i) does not have the suggested effect of adding market allowances to the cap
that otherwise applies to these employees under clause 24.3.2(a)(i). All it does is indicate that
there is another rule in clause 24.3.2(a) about the calculation of overtime (one which has
separate and distinct operation).
Conclusion
[50] I answer the questions for determination as follows:
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1. Is the document known as “On Call/Overtime Arrangements for IT” a compensation
mechanism for the purposes of clause 24.4 of the ABC Enterprise Agreement 2019-
2022?
No.
2. How does a compensation mechanism established in accordance with clause 24.4
of the 2019 Agreement interact with other provisions of the 2019 Agreement
conferring entitlements on employees, including overtime, minimum breaks between
shifts and Rostered Free Days (RFDs)?
Unless it is also an individual flexibility arrangement, a compensation mechanism
established under clause 24.4 of the 2019 Agreement can supplement, but not
displace, the terms of the 2019 Agreement, including those dealing with overtime,
minimum breaks between shifts and rostered free days.
3. Separately, having regard to clause 24.3.2 of the 2019 Agreement, if an employee
is engaged and paid at or above point 31 and in receipt of a market allowance, must
the ABC take into account that employee’s market allowance in the calculation of
the applicable overtime rate?
No, subject to the terms of any contract of employment, individual flexibility
agreement, salary package or buyout arrangement.
[51] The dispute is determined accordingly.
COMMISSIONER
Appearances:
K Barlow for the CPSU.
S Crilly of Seyfarth Shaw for the respondent.
Hearing details:
2022.
Sydney (by video):
November 28.
Printed by authority of the Commonwealth Government Printer
PR749022
F THE FAIR WORK OMMISSION AUSTRALIA THE SEA
