[2020] FWCFB 2061
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards
(AM2019/17)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 22 APRIL 2020

4 yearly review of modern awards – Ports, Harbours and Enclosed Water Vessels Award 2010 – shift work rates on weekends.

[1] This decision deals with an outstanding issue in the Ports, Harbours and Enclosed Vessels Award 2010 (the Ports Award) concerning the rates applicable to shift work.

[2] The issue of the rates for weekend work in the Ports Award was first raised by the Fair Work Ombudsman (FWO) in the following terms:

‘Clause 18.2 states that ordinary hours can be worked Monday to Friday. However, clauses 20.1(b) and 20.3 refer to ordinary hours worked on a Saturday and Sunday. It may be unclear under what circumstances an employee can work ordinary hours on a Saturday or Sunday.’ 1

[3] Clause 18 of the current award deals with ‘ordinary hours and rosters’. Clause 18.2 deals with the ‘span of hours’, as follows:

‘Ordinary hours may be worked between 6.00 am and 6.00 pm for up to eight hours per day, Monday to Friday inclusive.’

[4] The overtime clause in the current award provides that ‘any time worked outside of ordinary hours’ is overtime and any work between midnight on Friday and midnight on Sunday is overtime with the rates set out below:

20. Overtime and penalty rate

20.1 Employees will be entitled to be paid:

(a) a loading of 50% of the ordinary hourly base rate of pay for the first three hours, and 100% of the ordinary hourly base rate of pay thereafter for any time worked outside of ordinary hours on a Monday to Friday, except for public holidays;

(b) a loading of 50% of the ordinary hourly base rate of pay for all ordinary hours and overtime worked between midnight Friday and midnight Saturday; and

(b) a minimum of four hours if recalled to work overtime after leaving the employer’s premises.

…

20.3 Sunday work

An employee will be paid a loading of 100% of the ordinary hourly base rate of pay for any hours, ordinary and overtime, worked on a Sunday.

[5] Clauses 18 and 20 are expressed in general terms and, on their face, apply to day workers. The shift work clause is silent on ordinary hours of work for shift workers and on the interaction between shift allowance and overtime rates. It appears that clause 18—Hours of Work applies to shift workers as well as day workers. Currently, a shiftworker working shiftwork on a weekend is entitled to be paid for all ordinary or overtime hours at the overtime rate (per Overtime clauses 20.1(b) and 20.3).

[6] Clause 21 provides as follows:

21. Shiftwork

21.1 The following shifts may be worked:

(a) afternoon shift means any shift finishing after 6.00 pm and at or before midnight;

(b) continuous work means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer;

(c) night shift means any shift finishing subsequent to midnight and at or before 8.00 am;

(d) permanent night shift employee means an employee who:

(i) during a period of engagement on shift, works night shift only;

(ii) remains on night shift for a period longer than four consecutive weeks; or

(iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give them at least one third of their working time off night shift in each shift cycle during such engagement period or cycle.

[7] In the exposure draft dated 7 November 2016 parties were asked to respond to the following question related to the issue raised by FWO:

‘…whether the span of ordinary hours in clause 7.2 should also be defined to clarify under what circumstances an employee can work 'ordinary hours' on a weekend.’ 2

[8] On 6 June 2018 a Background Paper was published setting out the issue in dispute and summarising the submissions received to that date. A conference of interested parties was held on 21 June 2018. The transcript of that conference is here.

[9] A proposal about how to resolve the matter was outlined in the Background Paper as follows:

‘[25] With the exception of Business SA and MIAL, the parties appear to agree that shift work on Saturdays and Sundays is paid at the overtime rate and is not inclusive of shift allowance. Both the current award and exposure draft seem to support this, though it requires a careful reading of the three relevant clauses to arrive at that position.

[26] If this position were adopted it may be desirable to insert a new clause at 13.3 of the exposure draft, to clarify how the shiftwork rates interact with overtime, along the following lines:

Shiftwork rates in clause 13.2 are not payable when working overtime. The relevant overtime rate is payable instead.’

[10] This proposal was discussed at the conference which was convened on Thursday 21 June 2018. During the conference the AWU, AMOU, MUA, AIMPE and MIAL all agreed with the proposed new clause 13.3.

[11] On 2 August 2018 AEFI made a submission explaining their position, 3 which was also made on behalf of the Boating Industry Association – Commercial Vessels Division and the Association of Marine Park Tourism Operators. The submission states:

‘The Background Paper states, incorrectly in our view, that ‘any work between midnight on Friday and midnight on Sunday is overtime.’ The Background Paper’s statement indicates its conclusion is based on Clause 18.2 of the Award which states ‘[o]rdinary hours may be worked between 6am and 6pm for up to eight hours per day, Monday to Friday inclusive’.’

[12] AFEI submits the following:

•  Clause 18.2 of the Award is not an exhaustive statement of when ordinary hours can be worked;

•  Clause 20.1(b) of the Award is clear that it permits ordinary hours to be worked on Saturdays, irrespective of whether it is day work or shift work

•  Clause 20.3 of the Award is clear that it permits ordinary hours to be worked on Sundays, irrespective of whether it is day work or shift work;

•  The Award prescribes a loading of 50% and 100% respectively for ordinary hours and overtime worked on Saturdays and Sundays;

•  Clause 18.2 of the Award is not an impediment to working ordinary hours on a weekend, or on shift work;

•  There is no justification for removing the wording currently in Clause 20.1(b) and 20.3 of the Award from the substantive text of the section, which permits ordinary hours to be worked on weekends.

•  The Exposure Draft should be revised to ensure it is clear that it continues to permit an employee to work ordinary hours on a Saturday and Sunday, as is currently permitted by Clause 20.1 of the Award.

[13] AEFI’s submission seeks to resolve a potential inconsistency between the span of hours clause and the inclusion of ordinary hours for overtime rates on weekends and public holidays by stating that the span of hours clause is non-exhaustive. The span of hours clause, at 7.2 of the exposure draft and 18.2 of the current award reads as follows:

‘Ordinary hours may be worked between 6.00 am and 6.00 pm for up to eight hours per day, Monday to Friday inclusive.’

[14] In its submission of 31 October 2018, AFEI proposed further amendments to the exposure draft and provide detailed reasons for why it says the current award does allow for ordinary hours and overtime to be worked on weekends and does not allow for payment of both overtime rates and shiftwork rates on weekends.

[15] The AFEI submitted the following in respect of which rates apply to shift work on weekends:

•  for each hour of work on a Saturday, the rate of 1.5 times the ordinary hourly base rate of pay (this does not include any shift rate at cl. 21.2 of the current award),

•  for each hour of work on a Sunday, the rate of 2 times the ordinary hourly base rate of pay (this does not include any shift rate at cl. 21.2 of the current award).4

[16] AFEI submitted that ‘while ordinary time hours are distinct from overtime hours under the current award, the respective rates for ordinary hours on a Saturday and on a Sunday are commensurate with the rates for overtime on a Saturday and on a Sunday.’5 AFEI submitted the relevant provisions of the current award for determining the rates for work on a Saturday and Sunday are clauses 20.1(b) and 20.3 (set out earlier).

[17] AFEI submitted that the rate on which the loadings are calculated at clauses 20.1(b) and 20.3 for both ordinary hours and for overtime hours is the hourly rate of pay for ordinary hours of work and that rate does not include any loadings or penalties which would otherwise apply to the hours of work.6

[18] We note that there have been changes in the clause numbering of the Exposure Draft since the AFEI submission of 31 October 2018. These issues are addressed in AFEI’s submission of 4 March 2020,  7 as follows:

‘Since 31 October 2018, the Exposure Draft has undergone further changes notably to clause numbering. As a consequence, the proposals for clarifying amendments in the submission filed 31 October 2018 require variation to take into account the clause numbering in the Exposure Draft published 29 January 2020 and the definition of ‘ordinary hourly rate’ at clause 2 of the said draft.

Therefore, in the event that the Commission finds in favour of the AFEI parties with regard to the submissions filed 31 October 2018 in AM2014/241 and orders variations as proposed therein, the form of the amendments to the Exposure Draft published 29 January 2020 will be as follows:

A. Delete cl. 18.1 and cl. 18.2 of the Exposure Draft published 29 January 2020 and replace with new cl. 18.1 (and renumber existing cll.18.3 and 18.4 accordingly):

18.1 Employees will be paid at the applicable rates shown in the table below for:

(a) any overtime worked Monday to Friday;

(b) any ordinary hours and any overtime worked on a Saturday;

(c) any ordinary hours and any overtime worked on a Sunday;

(d) any ordinary hours and any overtime worked on a public holiday.

B. Replace cl. 12.2 of the Exposure Draft published 29 January 2020 with:

12.2 Span of hours

Ordinary hours may be worked:

(a) between 6.00am and 6.00pm for up to eight hours per day, Monday to Friday inclusive; or

(b) in accordance with a shift of ordinary hours as per clause 19 ‘Shiftwork’ of this award, or on a Saturday, a Sunday or a public holiday.

C. Replace cl. 19.2 of the Exposure Draft published 29 January 2020 with the following:

19.2 Shiftwork rates

(a) Except where the ordinary hours are worked on a Saturday, a Sunday or a public holiday, employees will be paid the following rates for ordinary hours worked on any shift type defined at clause 19.1 of this award:

[19] In a submission filed on 1 November 2018, the CFMMEU (MUA Division) opposed AFEI’s proposal to amend the Exposure Draft and submitted that ‘the proposal has the effect of enabling employees to be rostered to work ordinary hours on weekends, on public holidays and outside the span of hours set out in clause 7.2.’ The CFMMEU also submitted the AFEI proposal ‘would also enable an employee to be rostered for 8 hours from 7pm on a Monday but only paid at 115% of their ordinary rate of pay rather than 150% of their ordinary rate of pay for the first 3 hours and 200% of their ordinary rate of pay thereafter.’8

[20] The CFMMEU (MUA Division) submitted that in light of the concerns of AFEI that the award permits the working of ordinary hours outside the span of 6am to 6pm for up to 8 hours per day Monday to Friday clause 7.2 of the Exposure Draft should be amended to read:

7.2 Ordinary hours may only be worked between 6.00am and 6.00pm for up to eight hours per day, Monday to Friday inclusive.9

[21] In a decision issued on 23 November 2018 the Group 3 Full Bench said:

‘[21] It appears that there is broad agreement between interested parties that all hours worked on a Saturday or Sunday, regardless of whether they are overtime or ordinary hours, are paid at the same rate (i.e. 150 per cent on a Saturday and 200 per cent on a Sunday).

[22] It also appears that there is some agreement amongst the parties that if ordinary hours can be worked on a weekend, shift work rates are not payable, the relevant rate in clause 12.2 of the exposure draft is applicable.

[23] The issues raised by AFEI and CFMMEU in relation to the Ports, Harbours and Enclosed Water Vessels Award 2010 will be the subject of a conference before the President at 2pm on 20 December 2018 in Sydney. Any further submissions in respect of these issues are to be filed by 4pm on Monday 10 December 2018. If the issues are not resolved at the conference they will be determined on the papers, absent any request for an oral hearing. Any such request must be made by no later than 4pm on 20 December 2018.’ 10

[22] A transcript of the conference of 20 December 2018 is here.

[23] The following submissions have been filed in relation to this issue:

•  Australian Federation of Employers and Industries (2 August 2018, 31 October 2018 and 4 March 2020

•  Australian Workers’ Union (18 April 2016)

•  Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division (1 November 2018 and 20 December 2018)

•  Maritime Industry Australia (4 March 2020).

•  Maritime Union of Australia (14 April 2016 and 4 August 2017)

[24] This issue has now been transferred from the Group 3 awards Full Bench to this Full Bench.

[25] In a Statement 11 issued on 20 March 2020 we said (at [27]):

‘We propose to determine the issue on the papers having regard to the above submissions. If any party opposes that course or seeks an opportunity to file further submissions they should advise the Commission in writing by 4pm Friday, 3 April 2020.’

[26] No party opposed the course we proposed and no party sought an opportunity to file a further submission.

Consideration

[27] We begin by noting that in its submission of 31 October 2018, AFEI said that its proposed changes to the exposure draft were not intended to be a substantive change to the award conditions and that it does not seek a change in entitlements from the current award.12 Its concern focussed on the difference in approach between 20.1(b) and 20.3 of the current award and clause 12 of the exposure draft.13 AFEI submitted that each of the sub-clauses at clause 20.1(a)-(c) of the current award are separated by a semicolon, whereas in the introductory text at clause 12.2 of the exposure draft they are separated by commas. AFEI submitted this could ‘suggest conflation, rather than separation, of the items addressed, could convey an impression that it is dealing with overtime only – and yet under the current award cl.20.1 (b) and cl.20.3 address both ordinary hours and overtime hours.’14

[28] We agree with the broad approach adopted by AFEI, though not its proposed solution. The Exposure Draft process is intended to deal with the format and structure of awards and the resolution of ambiguity; in order to make the award simpler and easier to understand. The process is not intended to make substantive changes to award entitlements.

[29] We have given careful consideration to the submissions advanced. We propose to make the following changes to the exposure draft and draft variation determination:

•  to insert a new clause 19.3 as follows:

‘The shift work rates in clause 19.2 are not payable when working overtime. The relevant overtime rate in clause 18.2 is payable instead.’

•  replace the commas with semi colons in the introductory words to the table in clause 18.2.

[30] As mentioned earlier, the first amendment was discussed at the conference on 21 June 2018 and the AWU, AMOU, MUA, AIMPE and MIAL all agreed with proposed new clause.

[31] The second amendment addresses AFEI’s concern about the difference in approach between clauses 20.1(b) and 20.3 of the current award and clause 12 (now clause 18) of the Exposure Draft.

[32] We do not propose to make the other amendments proposed by AFEI. Nor do we propose to amend the span of hours clause as suggested by the CFMMEU. In our view, these proposed amendments go beyond the scope of our current task in finalising the Exposure Draft and the variation determination. Any party is at liberty to seek to vary the award by making an application pursuant to either s.158 or s.160 if they wish to pursue any further changes in the award.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR718428>

 1   See FWO Submission, 2 March 2015, item 31.

 2   Exposure draft, 7 November 2016 at clause 12.2

 3   AEFI, Submission, 2 August 2018

4 AFEI submission, 31 October 2018 at 2

5 AFEI submission, 31 October 2018 at 3

6 AFEI submission, 31 October 2018 at 12

 7   AFEI submission, 5 March 2010 at 2-3

8 CFMMEU submission, 1 November 2018 at 2

9 CFMMEU submission, 1 November 2018 at 5

 10   [2018] FWCFB 7145

 11   [2020] FWCFB 1510

12 AFEI submission, 31 October 2018 at 29-30

13 AFEI submission, 31 October 2018 at 31

14 AFEI submission, 31 October 2018 at 34