1
Fair Work Act 2009
s.160—Variation of modern award
EPI Capital Pty Ltd
(AM2022/8)
CLERKS—PRIVATE SECTOR AWARD 2020
Clerical industry
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 12 APRIL 2023
Application to vary the Clerks—Private Sector Award 2020 to remove ambiguity or
uncertainty or to correct an error
[1] EPI Capital Pty Ltd (EPI) is an employer covered by the Clerks—Private Sector Award
2020 (Award) and has applied under s 160 of the Fair Work Act 2009 (Act) for a determination
varying the Award to remove an ambiguity or uncertainty. The ambiguity or uncertainty is said
to arise from the overtime provisions of the Award.
[2] Clause 21.1 of the Award deals with overtime for employees who are not shift workers.
It relevantly provides that “[a]n employer must pay an employee at the overtime rate for any
hours worked at the direction of the employer:
(a) in excess of the ordinary weekly hours; or
(b) in excess of 10 ordinary hours on any one day, excluding unpaid meal breaks;
. . .”.
[3] Clause 28.1 of the Award deals with overtime for shift workers and relevantly provides
that “[a]n employer must pay an employee on shiftwork overtime rates at the relevant
percentage specified in column 2 for full-time and part time shiftworkers and column 3 for
casual shiftworkers of table 6 -Overtime rates for shiftwork (depending on when the overtime
was worked as specified in column 1) . . .”.
[4] Column 1 of table 6 provides for three circumstances when overtime is payable as
follows:
“Column 1
For all time worked:
In excess of the ordinary weekly hours fixed in clause 26.1
[2023] FWC 841
DECISION
AUSTRALIA FairWork Commission
https://asset.fwc.gov.au/documents/documents/modern_awards/award/ma000002/ma000002-34.htm#P788_62639
https://asset.fwc.gov.au/documents/documents/modern_awards/award/ma000002/ma000002-32.htm#P762_60139
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. . .
In excess of ordinary daily hours on an ordinary shift
. . .
Saturday, Sunday or public holiday that is not an ordinary working day
. . .”.
[5] EPI contends the Award is objectively ambiguous or uncertain in two respects:
• whether any of an employee’s period of leave or absence are “hours worked” and/or
“time worked” for the purposes of weekly and daily overtime clauses; and
• whether any of an employee’s period of leave or absence are “hours worked” and/or
“time worked” for the purposes of weekly and daily overtime clauses if taken after the
maximum ordinary hours in those clauses are reached.
[6] Each of Australian Business Industrial (ABI) and NSW Business Chamber Ltd
(NSWBC), the Australian Council of Trade Unions and Australian Municipal, Administrative,
Clerical and Services Union (collectively “the Unions”), the Australian Chamber of Commerce
and Industry (ACCI) and Ai Group oppose the application but for different reasons, to which I
will return.
[7] It is necessary first to deal with a contention by the Unions that the application should
be dismissed pursuant to s 587 of the Act on the basis that it is an abuse of process. The Unions
contend that the application should be ‘properly regarded as seeking to invoke the jurisdiction
of the Commission under s 160 for an illegitimate or improper purpose’. They contend that s
160 is directed to resolving an ambiguity or uncertainty which has or will have practical impacts
on the persons bound to comply with the Award and argue that EPI has produced no evidence
to show how the application will assist it in ensuring that it complies with its obligations under
the Award. The Unions contend that, as an individual employer, EPI’s views about the Award
are only valuable so far as they relate to its experience as an award-covered employer and say
that EPI has not provided any evidence to demonstrate that as an employer it has experienced
any uncertainty or ambiguity in applying the relevant clauses of the Award to its employees.
[8] Section 587 vests in the Commission a discretionary power to dismiss an application if
the application is not made in accordance with the Act, is frivolous or vexatious, or has no
reasonable prospects of success. It is to be doubted whether any of these bases for dismissal
encompasses the notion of an abuse of process. But in any event, it is not necessary for a person
applying under s 160, to show there is some interpretive problem in the award affecting the
person in a particular way before an application may be made. Relevantly, standing to apply is
determined in this case by reference to whether EPI is an employer that is covered by the Award,
and there is no real dispute, and I accept that it is so covered. To invoke the jurisdiction, EPI
will need to establish objectively that there is some ambiguity or uncertainty in the Award
provisions the subject of its application. It need not show that it has a particular problem as an
employer covered by the Award in applying the provisions nor need it express a preference for
how the Award should be varied to remove an ambiguity or uncertainty if one is found to exist.
https://www.fwc.gov.au/documents/documents/awardmod/variations/2022/am20228-reply-sub-abi-nswbc-020922.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2022/am20228-sub-actu-asu-020922.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2022/am20228-sub-actu-asu-020922.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2022/am20228-sub-acci-020922.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2022/am20228-sub-acci-020922.pdf
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Therefore, even if there was power under s 587 to dismiss an application as an abuse of process,
EPI’s application is not one that meets that description.
[9] Returning then to the substance of the application, in respect to the two areas of
ambiguity or uncertainty for which EPI contends, it advances that which may be described as
two competing contentions for each area. As to the first, EPI contends that clauses 21.1 and
28.1 of the Award may be construed as providing that an employee’s period of leave or absence
are not “hours worked” and/or “time worked” for the purposes of the weekly and daily overtime
clauses. EPI describes this as the “Excluding Leave Interpretation”. The second is said to be
that such leave or absence is “hours worked” and/or “time worked” for the purposes of the
weekly and daily overtime clauses. EPI describes this as the “Included Leave Interpretation”.
[10] As will later become clear, the competing constructions proceed upon a misconceived
premise because the words “hours worked” and “time worked” used in clauses 21.1 and 28.1
of the Award are concerned with the hours or time spent working overtime, not ordinary hours.
In substance that which is said to be ambiguous or uncertain is whether, in respect of the
qualifying hours in clause 21.1(a) (in excess of ordinary weekly hours) and clause 21.1(a) (b)
(in excess of 10 ordinary hours on any day) an employee must first work the number of hours
specified before any further hour or time worked may be regarded as in excess of the identified
ordinary hours. Put another way, if an employee takes a period of leave or absence that is
authorised, during hours that would have been the employee’s ordinary hours of work, does the
leave or absence during those hours count to calculate the qualifying hours described in clauses
21.1(a) and (b). In the context of clause 28.1, the qualifying hours are described in column 1 of
table 6.
[11] The second area of ambiguity is said to arise only if the Commission concludes there is
no ambiguity or uncertainty because the Included Leave Interpretation is the only available
construction or that having found ambiguity or uncertainty, a determination is made to vary the
Award consistent with the Included Leave Interpretation.1 In this respect EPI advance the
following competing constructions. First, for the purposes of clauses 21.1 and 28.1 of the Award
an employee’s period of leave or absence can be “hours worked” and/or “time worked” if taken
after the maximum ordinary hours in those clauses are reached. This EPI describes as the
“Overtime Interpretation”. Second, for the purposes of clauses 21.1 and 28.1 of the Award an
employee’s period of leave or absence cannot be “hours worked” and/or “time worked” if taken
after the maximum ordinary hours in those clauses are reached, which EPI describes as the
“Ordinary Hours Interpretation”.
[12] As I earlier noted, the Unions and the employer associations which have made
submissions each oppose the application but for different reasons.
[13] Briefly, ABI and NSWBC oppose the variations on the basis there is no ambiguity or
uncertainty in the relevant Award provisions because the plain and ordinary meaning of the
clauses makes clear that the Excluding Leave Interpretation is the only viable interpretation as
a period of leave (or authorised absence) cannot constitute “hours worked” or “time worked”
under the Award. Consequently, the Included Leave Interpretation is not viable (or arguable).
ACCI submits that the Award is neither ambiguous or uncertain because the treatment of
periods of leave for the purposes of overtime is ‘clear on the plain and ordinary meaning of its
terms’ and does not constitute hours/time worked for the purposes of clauses 21 and 28. It
contends in effect that the Excluding Leave Interpretation is the only available construction.
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[14] The Ai Group contends there is no ambiguity or uncertainty in the relevant sense and
that the Excluding Leave Interpretation is not arguable. This is because clause 21 of the Award
requires the payment of overtime rates in relation to “hours worked” and does not dictate the
number of ordinary hours that must be “worked” before overtime entitlements become payable.
The Ai Group submit that the use of the word ‘worked’ in clause 21.1 does not so much as
suggest that an employee’s “ordinary weekly hours”, as referenced by clause 21.1(a), or the ‘10
hours in a day’ mentioned in clause 21.1(b) of the Award must in fact have been worked. Ai
Group makes similar observations in relation to clause 28.1. Put another way, Ai Group
contends that the Award proceeds on the basis that an employee’s ordinary hours of work will
be fixed by their employer. By virtue of clauses 21.1 and 28.1 of the Award, an employee is
entitled to be paid at overtime rates for work performed outside or in excess of those hours,
even if those hours included a period of absence. It will not generally (if ever) be necessary to
determine whether a period of leave should be counted as time worked for the purposes of
clause 21.1 or 28.1 as hours worked outside “weekly hours” will attract overtime rates.
[15] The Unions contend in substance that there is no ambiguity or uncertainty in the
operative Award provisions. The Unions contend that none of the threshold requirements
(which I have earlier described as the qualifying hours) described in clauses 21.1(a) and (b),
and in clause 28.1, column 1 of table 6, use the words “work”, “worked” or any variation
thereof. They contend the chapeau to clause 21.1 and the first cell in table 6 use the expressions
“hours worked” and “time worked” merely to signify that the relevant overtime rate will apply
to the quantity of time that is worked as overtime, provided the threshold condition is met. That
threshold condition is that the overtime hours or time that is worked is in excess of the
qualifying hours described; the condition is not that the overtime hours or time that is worked
is in excess of the qualifying hours already worked. Put another way, the Unions contend that
the Award provisions do not set the threshold requirement on the basis that the ordinary hours
described in clauses 21.1(a) and (b), and in clause 28.1, column 1 of table 6 must have been
worked, rather it fixes the threshold requirement on the basis of ordinary hours described in
clauses 21.1(a) and (b), and in clause 28.1, column 1 of table 6 as existing.
[16] For the reasons which follow I am not persuaded that there is any ambiguity or
uncertainty in the Award as contended by EPI. Both the Including and Excluding Leave
Interpretations proceed upon a misconceived premise. The reference in clauses 21.1 and 28.1
to “hours worked” and “time worked” is to the actual performance of work which is overtime
because it is undertaken “in excess of”, “outside”, “on” or at a trigger point identified by those
clauses. It is not a reference to hours or time that is ordinary hours of work. Overtime rates,
unlike ordinary time rates (which may be paid during some leave or absences), are only payable
upon the working of overtime. Leave or an authorised absence is from time that would be
ordinary hours of work which may be paid or unpaid depending on the nature of the leave or
absence. But an absence from overtime is never paid because as clauses 21.1 and 28.1 make
clear, the prescribed overtime rates are payable by the employer relevant for all hours or time
worked that is overtime.
Consideration
[17] Section 160 of the Act allows the Commission to make a determination varying a
modern award to remove ambiguity, uncertainty or to correct an error. It provides as follows:
(1) The FWC may make a determination varying a modern award to remove an
ambiguity or uncertainty or to correct an error.
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(2) The FWC may make the determination:
(a) on its own initiative; or
(b) on application by an employer, employee, organisation or outworker entity
that is covered by the modern award; or
(c) on application by an organisation that is entitled to represent the industrial
interests of one or more employers or employees that are covered by the
modern award; or
(d) if the modern award includes outworker terms—on application by an
organisation that is entitled to represent the industrial interests of one or
more outworkers to whom the outworker terms relate.
[18] Section 165 provides:
Determinations come into operation on specified day
(1) A determination under this Part that varies a modern award (other than a
determination that sets, varies or revokes modern award minimum wages) comes
into operation on the day specified in the determination.
Note 1: For when a modern award, or a revocation of a modern award, comes into
operation, see section 49.
Note: For when a determination under this Part setting, varying or revoking modern
award minimum wages comes into operation, see section 166.
(2) The specified day must not be earlier than the day on which the determination is
made, unless:
(a) the determination is made under section 160 (which deals with variation to
remove ambiguities or correct errors); and
(b) the FWC is satisfied that there are exceptional circumstances that justify
specifying an earlier day.
Determinations take effect from first full pay period
(3) The determination does not take effect in relation to a particular employee until the
start of the employee’s first full pay period that starts on or after the day the
determination comes into operation.
[19] The modern awards objective is set out in s.134(1) of the Act as follows:
(1) The FWC must ensure that modern awards, together with the National Employment
Standards, provide a fair and relevant minimum safety net of terms and conditions,
taking into account:
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(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce
participation; and
(d) the need to promote flexible modern work practices and the efficient and
productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable value;
and
(f) the likely impact of any exercise of modern award powers on business,
including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable
modern award system for Australia that avoids unnecessary overlap of modern
awards; and
(h) the likely impact of any exercise of modern award powers on employment
growth, inflation and the sustainability, performance and competitiveness of the
national economy.
[20] Section 134(2) of the Act provides that the modern awards objective applies to the
performance or exercise of the FWC’s modern award powers, which are, relevantly the
Commission’s functions or powers under Part 2-3 of the Act, in which s 160 is found.
[21] The principles applicable to the exercise of the Commission’s jurisdiction under s 160
(and similarly s 217) are well established. In Bradnam’s Windows and Doors Pty Ltd2 I
summarised these, and with some minor modifications I adopt the summary as follows:
• The Commission should approach an application in two stages. First, as a
jurisdictional pre-requisite, it should identify whether there is an uncertainty or
ambiguity. Secondly, if an ambiguity or uncertainty is identified, it should consider
whether to exercise its discretion to vary the agreement the subject of the
application;3
http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html#modern_awards_objective
http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html#applies
http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html#modern_award_powers
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• The process of identifying ambiguity or uncertainty involves making an objective
assessment of the words used in the provisions under examination. The words used
are construed having regard to their context;4
• The Commission will generally err on the side of finding an ambiguity or
uncertainty where there are rival contentions advanced and an arguable case is made
out for more than one contention;5
• However, the Commission must make a positive finding that an instrument the
subject of an application is ambiguous or uncertain. Prima facie satisfaction of
ambiguity or uncertainty is not sufficient;6
• The mere existence of rival contentions as to the proper construction of the terms
of an instrument will also be an insufficient basis to conclude the existence of
ambiguity or uncertainty. Such contentions may be self-serving. The task is to make
an objective judgment as to whether the wording of a provision is susceptible to
more than one meaning;7 and
• Relevant to a variation of an enterprise agreement, once an ambiguity or uncertainty
has been identified, in exercising the discretion whether to vary the agreement, the
Commission is to have regard to the mutual intention of the parties at the time the
agreement was made.8
[22] To this must be added two matters identified by the Full Court of the Federal Court of
Australia in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy
Union.9 First, that the task of the Commission is not to interpret the instrument definitively –
the identification of the true meaning of a provision is distinct from the question of whether it
is ambiguous or uncertain.10 Second, the words “ambiguity” and “uncertainty” are not
synonymous. There may be uncertainty in an instrument even when its terms are not ambiguous.
The uncertainty may arise from the application of the unambiguous terms to a given set of
circumstances.11
[23] Returning then to the provisions of the Award, Part 3 of which (clauses 13-15) deals
with hours of work. Clause 13 applies to employees other than shiftworkers (clause 13.1). The
notes in clause 13.1 provide that ordinary hours of work per week for a full-time employee are
as set out in clause 9; for a part-time employee are as agreed under clause 10; and for
shiftworkers as set out in Part 6.
[24] Thus, under the Award, a full time employee is engaged to work 38 ordinary hours per
week (or the number of hours considered full time at a workplace by the employer (clause 9.1).
A part time employee is engaged to work for fewer ordinary hours than 38 per week (or the
number considered full time) on a reasonably predictable basis (clause 10.1). When a part time
employee is engaged, the employer and employee must agree in writing on the number of hours
to be worked each day; the days of the week on which the employee will work; and the times
at which the employee will start and finish work each day. The maximum number of ordinary
hours that can be worked on any day is 10 hours (clause 13.7) and ordinary hours must be
worked continuously (clause 13.6).
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[25] Clause 31.2 sets out the maximum average number of hours (38 hours) that may be
worked by an employee in a week over an averaging period. Clauses 13.3 and 13.4 set out the
spread of hours between which ordinary hours may be worked and rules for altering the spread.
[26] Clause 13.5 deals with the capacity of the employer to direct work outside the spread of
ordinary hours prescribed by the Award in particular circumstances. Clause 13.8 allows an
employer and an employee to agree that the employee may take time off during ordinary hours
and make up that time by working at another time during ordinary hours.
[27] Clause 14 deals with rostering arrangements which would entail the accrual of a rostered
day off and related matters. Clause 15 deals with rest and meal breaks.
[28] Part 5 of the Award deals with overtime and penalty rates for employees other than shift
workers. Clause 21.4 contains the applicable overtime rates and clause 21.1 sets out the
circumstances in which the rates must be paid. Clause 21.1 provides:
21.1 An employer must pay an employee at the overtime rate for any hours worked
at the direction of the employer:
(a) in excess of the ordinary weekly hours; or
(b) in excess of 10 ordinary hours on any one day, excluding unpaid meal breaks;
or
(c) outside the spread of ordinary hours; or
(d) for overtime worked on a rostered day off that is not substituted or banked;
or
(e) for part-time employees, in excess of the number of ordinary hours that the
employee has agreed to work under clause 10.2 or as varied under clause 10.3
(Part-time employment).
[29] Clause 21.2 provides that “[f]or the purposes of clause 21, ordinary weekly hours means
the hours of work fixed in a workplace in accordance with clause 13—Ordinary hours of work
(employees other than shiftworkers) and clause 14—Rostering arrangements (employees other
than shiftworkers) or as varied in accordance with the relevant clauses of” the Award.
[30] Reference should also be made to clause 10.6 which provides in respect of part time
employees that “[a[ll time worked in excess of the number of ordinary hours agreed under
clause 10.2 or as varied under clause 10.3 is overtime and must be paid at the overtime rate in
accordance with clause 21—Overtime (employees other than shiftworkers)”.
[31] It may readily be observed that clause 21.1 is not concerned with the working of ordinary
hours. It is concerned with the payment of overtime rates “for any hours worked at the direction
of the employer”, relevantly “in excess of the ordinary weekly hours”, or “in excess of 10
ordinary hours on any one day” or “in excess of the number of ordinary hours that the employee
has agreed to work under clause 10.2 or as varied under clause 10.3”. The conditions in
paragraphs 21.1(a) – (e) are triggering points. Relevantly, overtime rates must be paid when at
the direction of the employer an employee works any hours “in excess of” the triggering points
in (a), (b) or (e), “outside” the trigger point in (c) or “on” the trigger point in (d). The reference
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to “any hours worked” is to hours worked “in excess of”, “outside” or “on” the relevant trigger
point. That is, it is a reference to the working of overtime hours not ordinary hours.
[32] Similarly, the reference in clause 10.6 to “all time worked” is a reference to the time
worked which is in excess of the trigger point.
[33] Part 6 of the Award deals with shift work. Clause 26.1 provides that the number of
ordinary hours that can be worked in a week is an average of 38 hours over a 4 week period or
over a roster period, not exceeding 12 months, as agreed between an employer and the majority
of employees concerned.
[34] The maximum number of ordinary hours that can be worked in any day is 10 hours
(clause 26.2). A maximum of 6 shifts can be worked over the period of a week (clause 26.3)
and changes to the times at which the employee will start and finish a shift may be made by the
employer giving the employee at least 7 days’ notice of the change or at any time by the
employer and employee by agreement (clause 26.4). The employer and an employee may agree
that the employee may take a period of ordinary hours as time off and make up that time off by
working at another time during which the employee may work ordinary hours (clause 26.5).
[35] Clause 28 deals with overtime for shift work and provides:
28.1 An employer must pay an employee on shiftwork overtime rates at the relevant
percentage specified in column 2 for full-time and part-time shiftworkers and
column 3 for casual shiftworkers of Table 6—Overtime rates for shiftwork
(depending on when the overtime was worked as specified in column 1) as
follows:
Table 6—Overtime rates for shiftwork
COLUMN 1
FOR ALL TIME
WORKED:
Column 2
Overtime rate
Full-time and part-time
employees
Column 3
Overtime rate
Casual employees
% of minimum hourly
rate
% of minimum
hourly rate
In excess of the ordinary
weekly hours fixed in clause
26.1
first 3 hours 150 175
after 3 hours 200 225
In excess of ordinary daily
hours on an ordinary shift
first 2 hours 150 175
after 2 hours 200 225
Saturday, Sunday or public
holiday that is not an ordinary
working day
200 225
NOTE 1: Schedule B – Summary of Hourly Rates of Pay sets out the hourly overtime
rate for all employee classifications according to when overtime is worked.
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NOTE 2: The overtime rates for casual employees have been calculated by adding the
casual loading prescribed by clause 11.1 to the overtime rates for full-time and part-
time employees prescribed by clause 28.1.
28.2 Penalty rates for shiftwork are not cumulative on overtime rates.
28.3 An employer must pay an employee for a minimum of 4 hours at the overtime
rate specified in clause 28.1 if:
(a) the employee is required to work overtime on a Saturday, a Sunday or a
public holiday (as prescribed in Division 10 of Part 2.2 of the Act); and
(b) the employee would not have been ordinarily rostered to work that day;
and
(c) the work is not continuous with the start or finish of the employee’s
ordinary shift.
[36] As with clause 21, clause 28 is concerned with working of and payment for, overtime,
not ordinary hours. Like clause 21, clause 28 contains triggering points “in excess of” or at
which, work undertaken is overtime. The reference in column 1 of Table 6 to “[f]or all time
worked” is a reference to the time worked at or in excess of the triggering points. It is not a
reference to time worked as ordinary hours.
[37] Clause 21.1 of the Award helpfully points out that “ordinary weekly hours” means the
hours of work fixed in a workplace in accordance with clause 13 and clause 14. How these
hours are fixed are earlier set out. This relates to the trigger points in clause 21.1(a). Clause 28
also defines the term because its first trigger point is for time worked in excess of “the ordinary
weekly hours” fixed in clause 26.1.
[38] Thus, for non-shift work employees, ordinary weekly hours are fixed for a full time
employee at 38 ordinary hours (or an average thereof over 4 weeks or other period) per week
(or the number of hours considered full time at a workplace by the employer. For a part time
employee, ordinary hours are fewer than 38 per week (or the number considered full time) and
the employer and employee have to agree on engagement in writing (or as subsequently varied)
the number of hours to be worked each day; the days of the week on which the employee will
work; and the times at which the employee will start and finish work each day (clause 13 and
14, taking into account clauses 9 and 10 to which the notes in 13.1 direct attention).
[39] For a shift work employee, the ordinary weekly hours are a maximum of an average of
38 hours over a 4 week period or over a roster period, not exceeding 12 months, as agreed
between an employer and the majority of employees concerned.
[40] In each case in any given workplace where ordinary hours are fixed in accordance with
the various provisions of the Award discussed above, ordinary weekly hours are known.
Similarly, the daily maximum number of ordinary hours (10 hours) (clause 21.1(b)) and the
ordinary daily hours on an ordinary shift (clause 28.1), in respect of a workplace are or will be
known.
[41] There is nothing in clauses 21.1 or 28.1 which suggests the ordinary hours trigger points
must have all been worked, before additional hours worked become overtime. Indeed, it is in
https://www.legislation.gov.au/Series/C2009A00028
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my view patently obvious that periods of leave or authorised absences from ordinary hours of
duty under the Award are part of the ordinary weekly hours and the maximum daily ordinary
hours constituting the relevant trigger points in clause 21.1 and 28.1. There are also contextual
indicators which support this view. The leave provisions of the Award are found in Part 7. Each
form of leave therein mentioned provides that that form of leave is as provided for in the
National Employment Standards (NES) (clauses 32.1 – Annual Leave; 33.1 - Personal/carer’s
leave and compassionate leave; 34 - Parental leave; 35 - Community service leave; 36 - Family
and domestic violence leave; and 37- Public holidays). Some of these clauses provide for
additional benefits. Each period of allowable leave under the NES, whether paid or unpaid, is
taken from or during periods when ordinary hours or the maximum number of weekly hours
for which s 62 of the Act provides would have been worked. That this is so, is made clear by s
62(4).
[42] In so far as leave taken pursuant to the NES is paid leave, the NES provides that:
• if an employee takes a period of paid annual leave, the employer must pay
the employee at the employee‘s base rate of pay for the employee‘s ordinary hours of
work in the period (s 90(2));
• if an employee takes a period of paid personal/carer’s leave, the employer must pay
the employee at the employee‘s base rate of pay for the employee‘s ordinary hours of
work in the period (s 99);
• if an employee takes a period of compassionate leave, the employer must pay
the employee at the employee‘s base rate of pay for the employee‘s ordinary hours of
work in the period (s 106);
• if an employee is absent from his or her employment on a day or part-day that is
a public holiday, the employer must pay the employee at the employee‘s base rate of
pay for the employee‘s ordinary hours of work on the day or part-day (s 116)
[43] The additional annual leave benefit in clause 32.3 of the Award dealing with annual
leave loading, also countenances the calculation of the additional benefit by reference to the
employee’s ordinary hours of work in the period during which the leave is taken.
[44] Thus, under the Award an employee’s ordinary hours are pre-determined or fixed in
accordance with clauses 13 and 14 of the Award and an employee’s leave or authorised absence
from ordinary hours is part of that employee’s ordinary hours in a day or a week during the
period of leave of absence. Under the Award, an employer and employee may agree that an
employee may take time off during ordinary hours and make up that time by working at another
time during ordinary hours (clauses 13.8 and 26.5). But for the reasons explained above, any
other form of leave or authorised absence is taken as part of an employee’s ordinary hours of
work. But this is no more than an agreement to move the time at which some ordinary hours
will be worked by the employee. An employee’s ordinary hours are fixed in accordance with
the provisions of the Award discussed above. These fixed ordinary hours (and maximum
ordinary hours) are known and so the triggers for overtime are also known. Put simply, and by
way of example, if an employee’s ordinary hours are fixed at 38 hours worked on Monday to
Wednesday for 10 hours each day and on Thursday for 8 hours, and the employee works in a
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https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html#compassionate_leave
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https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html#base_rate_of_pay
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[2023] FWC 841
12
given week at the direction of the employer for 4 hours on the Friday, the 4 hours are plainly in
excess of the employee’s weekly ordinary hours fixed in accordance with clauses 13 and 14 of
the Award. What difference does it make that in the week the employee works on the Friday,
that the employee was absent on annual leave on the Wednesday? The answer is of course none.
The leave is part of the employees weekly ordinary hours fixed in accordance with clauses 13
and 14.
[45] The same result would pertain if on a given Wednesday the employee took 4 hours of
personal leave to attend a medical appointment and then returned to work the remaining 6 hours
of ordinary time on that day but worked an additional hour at the direction of the employer. The
4 hours of leave and the 6 hours worked together constitute 10 ordinary hours on that day. The
additional hour is an hour worked in excess of the daily maximum and so the overtime payment
obligation arises. There is a difference between the ordinary hours that are fixed in accordance
with the Award, and a requirement that those hours be worked as a condition to payment for
overtime for certain hours worked. The Award clearly adopts the first formulation. For the
purposes of the overtime obligations under the Award, what must be worked is the overtime
hours or time. The ordinary hours amounting to the trigger points may, but need not, all be
worked.
[46] But neither of EPI’s alternative constructions are arguable because they both precede on
a patently misconceived premise – that the words “hours worked” and “time worked” are
referable to ordinary time. The reference in the alternative constructions advanced to “hours
worked” and/or “time worked” for the purposes of weekly and daily overtime clauses” is a
reference to the trigger points in clause 21.1(a) and (b) and clause 28.1 in column 1 of the table.
So much is clear from the reference to the following in each construction advanced by EPI: “for
the purposes of weekly and daily overtime clauses”. Clause 21.1(a) and (b) and column 1 of
table 6 in clause 28.1 are concerned with ordinary weekly hours and maximum ordinary daily
hours. But the phrases which precede them - “hours worked” and “time worked” - are referable
to hours which must actually be worked, and which are in excess of the relevant trigger points.
Understood in this way, the question - whether a period of leave or absence is included or
excluded from “hours worked” and/or “time worked” - self-evidently does not arise because
those “hours” or “time” relate to overtime hours which must be worked if the entitlement to the
overtime rates for which clauses 21 and 28 provide, is engaged.
[47] The competing constructions advanced by EPI are not arguable for the reasons outlined.
Nor is the issue - whether there is ambiguity or uncertainty - advanced simply because the
Unions and the employer associations have advanced a case for one or another of the competing
constructions advanced by EPI. The real issue of contended ambiguity or uncertainty, which I
have endeavoured to capture at [10] above, does not yield a result that the Award is ambiguous
or uncertain. The alternative notion or construction that leave or an authorised absence is not
part of an employee’s daily or weekly ordinary hours fixed in accordance with the Award is not
arguable.
[48] The second area of ambiguity or uncertainty for which EPI contends - whether any of
an employee’s period of leave or absence are ‘hours worked’ and/or ‘time worked’ for the
purposes of weekly and daily overtime clauses if taken after the maximum ordinary hours in
those clauses are reached – is similarly misconceived because the phrases in parentheses are
concerned with actual hours or time worked as overtime. An employee who is absent during a
period, which if worked would be overtime under the Award, self-evidently does not work the
period and so the period plainly would not count as hours or time worked.
[2023] FWC 841
13
[49] Finally, I have in this decision, as have the parties in their respective submissions, used
the words “ambiguity” and “uncertainty” together. As I have earlier noted, the words are not
synonymous. There may be uncertainty in an instrument even when its terms are not ambiguous.
I do not consider the words of the Award to be ambiguous. Nor do I consider the relevant
provisions of the Award to be uncertain either in expression or in operation. There has otherwise
been no contention advanced that some uncertainty arises from the application of the terms of
the Award to a given set of circumstances, and certainly no evidence about any such
circumstances has been led.
Conclusion
[50] For the foregoing reasons I am not persuaded there is any ambiguity or uncertainty as
contended by EPI. The application will be dismissed.
Order
[51] The application in AM2022/8 is dismissed.
DEPUTY PRESIDENT
Determined on the papers.
Written submissions:
EPI Capital Pty Ltd, 27 June 2022, 1 August 2022 and 13 October 2022
Ai Group, 26 September 2022 and 18 November 2022
Australian Business Industrial and NSW Business Chamber Ltd, 2 September 2022 and 18
November 2022
Australian Chamber of Commerce and Industry, 2 September 2022 and 18 November 2022
Australian Council of Trade Unions and Australian Services Union, 2 September 2022
Printed by authority of the Commonwealth Government Printer
MA000002 PR760941
THE FAIR WORK 0 MMISSION THE
[2023] FWC 841
14
1 EPI submissions dated 27 June 2022 at [22]
2 [2019] FWCA 979
3 Re Tenix Defence Systems Pty Limited Certified Agreement 2001 - 2004 (PR917548) at [28], [32] and [35]
4 Ibid at [29]
5 Ibid at [31]
6 CoInvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57]
7 Re Civil Construction Corporation Enterprise Agreement (PR939346); SJ Higgins Pty Ltd and Others v CFMEU
(PR903843); Re CFMEU Appeal (Print R2431)
8 Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (PR917548) at [32]
9 [2020] FCAFC 50
10 Ibid at [66]-[72]
11 Ibid at [73] to [83]
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