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[2025] FWC 2264
General information, not legal advice.
Fair Work Commission
2025-08-04
Original judgment source is linked above.
For the reasons set out above, the yard planners are plainly not available to work on any shift Monday to Sunday, and accordingly, are not entitled to accrue five weeks of annual leave for each year of service under the Agreement.
The Commission ought reject the AMOU's contention and confirm that the relevant yard planners are, under their current rosters, presently entitled to accrue only four weeks of annual leave for each year of service under the Agreement."[28]
MR MILNE: Now, we address in our submissions what we say 'available' means, and we refer to the dictionary and the fact that it's 'able to be used, obtained or selected, at one's disposal'. We say that that makes clear that - the ordinary language makes clear that availability is assessed from DP World's perspective, not from the employees' perspective, that is, whether we are able to use those employees and they are at DP World's disposal. We say, for the reasons that have been pointed out, clause 21.3 makes it abundantly clear that that's not the case and we can't require them to work outside that roster, and if we were to do so, we'd have to go through - sorry, we can't do that and, as such, they're not available outside of that roster, and the roster is the key point here.
Second, we say the ordinary meaning of 'any' is 'of whatever sort or kind'. Again we refer in our submissions to the relevant dictionary meaning. We say, in context, that means you've got to work each day, evening or night shifts, or, at the very least, across the 24/7 period in order to be that continuous shift worker.
THE DEPUTY PRESIDENT: Over what period, like a roster that Ms Higginbottom has put up?
MR MILNE: Correct. Importantly, as you'll see from those rosters, they are the present agreed rosters, they are what are being worked, there's nothing outside of that. We say, in those circumstances, they have only agreed to work and, in circumstances where they can't be compelled to work outside of those rosters, they are only available to work those day and evening shifts that they cover the 24/7 period.
Of course, if a different roster was implemented and agreed to which included work on each day, evening and night shift across the 24/7 period such that they met that definition, they would get the additional week of annual leave - we don't dispute that - and, indeed, it is my understanding that, in the past, they have received accrued additional leave during that period. However, that's not the current roster.
So we say, for all those reasons, Deputy President, the yard planners are plainly not, under their current rosters, available to work on any shift Monday to Sunday and, accordingly, are not entitled to accrue the five weeks of annual leave.
THE DEPUTY PRESIDENT: Is that because your rosters don't go over that period currently?
MR MILNE: It's for two reasons, Deputy President. The first is they don't cover that 24/7 period for continuous, but the second is, we say the reference to 'any shift' is a reference to the type of shift, that is, day evening and night shift, and if we don't have night shifts, for example, like we don't at Port Botany, we can't - they're not available to work that shift because that shift doesn't exist.
Again, you know, if you look at the agreement and you say, 'Well, the parties could agree on any shift at any time', hypothetically it means again every single shift worker will effectively be available to work and would be entitled to five weeks, and it's the point - and I appreciate the comment you made a moment ago, Deputy President, but it's a point you make in Bega that I was going to address that, just because an enterprise agreement has a definition of shift worker for the purposes of the National Employment Standards, doesn't mean it actually has to apply to someone, it's going to depend on the circumstances.
That's very clear because of the operation of 196 of the Fair Work Act, which Mr Neiberding has been saying that what has happened is the parties have agreed to expand the definition. That is not correct. The definition, as you rightly point out, Deputy President, is adopted from the modern award in the exact same terms because it has to be under section 196. It could have been broader, the parties could have given a more generous or less restrictive definition, but they didn't. They adopted the very definition in the modern award.[29]
Consideration and determination of the AL Leave Dispute
For the purpose of Division 6 of the NES a shiftworker is an employee who is available to work on any shift Monday to Sunday and who actually attends for work as required from time to time on both Saturday and Sunday."
clause 24.2 of the SIA 2020 has its origins from clause 27(b)(i) of the Stevedoring Industry Award 1991 (S0283 Rep V Print K4259) (SIA 1991), which reads:
(b) Clause 5 of the SIA 1991 set out the awards rescinded and superseded by the that award. The same (or similar) wording for annual leave appears in many other awards listed at clause 5 of the SIA 1991. It appears that the wording for clause 27(b)(i) of the SIA 1991 was based upon, or derived from, at least:
(c) The SIA 1991 was consumed into the Stevedoring Industry Award 1999 (AP796113, made on 28 October 1999) (SIA 1999), as a result of the award simplification process).[31] Its clause as to annual leave read:
(d) The SIA 1999 was consumed into the Stevedoring Industry Award 2010 (as a result of the award modernisation process) (SIA 2010).[32] As to annual leave, it relevantly read:
(e) The SIA 2020 was made as a result of the 4 yearly review of modern awards. An exposure draft was published on 2 October 2014, along with a comparison document comparing the wording of the 'shiftworkers' annual leave clause in the SIA 2010 (clause 22.3) to the proposed wording of the 'shiftworkers' annual leave clause (at clause 16.2 of the SIA 2020):
(f) As a result of the Full Bench decision issued on 23 December 2014 ( [2014] FWCFB 9412, at [35]), the wording was amended, and an updated exposure draft was published that read:
(g) The wording of the foregoing clause has remained unchanged since that amendment, as currently reflected at clause 24.2 of the SIA 2020.
(a) The history of clause 24.2 of the SIA 2020 does not assist in terms of the meaning of the phrase "available to work" (i.e. under the Agreement, or the SIA Award). Again, there are no recorded decisions on the construction or application of this phrase as it concerns the entitlement to additional annual leave (under an award, or other industrial instrument).
(b) Notwithstanding clause 20.1 of the Agreement, per clause 6 of the Agreement, Monday to Friday Dayworkers, and Shiftworkers, are employees who do not work their ordinary hours on days other than Monday to Friday "each week". It follows that under the terms of the Agreement, such employees are not 'available' to be rostered to work shifts on days other than Monday to Friday "each week". This is to be contrasted with a "Continuous Shiftworker" who, under the terms of the Agreement, is not subject to such restrictions.
(c) Clause 2 of the SIA 2020 defines the terms "day shift", "day work". "7 day continuous shiftwork", and "shiftwork employee". Continuous shiftwork under the SIA 2020 involves work performed on shifts across each of the 7 days of the week, which may be worked over one, two or three shifts per day (i.e. as opposed to needing to be worked across three (day, afternoon or evening, and night) shifts each day (see also clause 13.3(c) of the SIA 2020).
(d) The Agreement (at Clause 13 and Schedule 1) provides for annualised (or 'all inclusive') salaries based upon the working of (ordinary hour) rosters of 36, 38, 40 and 42 hours in length.
(e) The fifth (or additional) week of annual leave under the Agreement arises where an employee (to whom the Agreement applies) is a "Continuous Shiftworker" (as defined by clause 6 of the Agreement). That definition has two components, both of which must be met.
(f) A plain and ordinary reading of the words of clause 6 of the Agreement (and the Undertaking) identifies that in order to be a "shiftworker" for the purposes of the NES additional (or fifth week of) annual leave under clause 24.2 of the Agreement, a relevant employee must be a "Continuous Shiftworker" who firstly, is "available to work on any shift Monday to Sunday", and secondly, "actually attend[s] for work as required from time to time on both Saturday and Sunday." Neither "Monday to Friday Day Worker", nor a "Shiftworker", is a "Continuous Shiftworker" under the Agreement.
(g) The phrase "actually attends for work as required from time to time on both Saturday and Sunday" is not in dispute.[33] That phrase is to be contrasted with the phrase that is in dispute, namely "available to work on any shift Monday to Sunday". Quite plainly, 'availability' to work, and 'actually attending' for work, are not the same thing.
(h) Any work performed by an employee outside of their roster is 'overtime'. The resolution of the AL Dispute does not concern itself with overtime, be it the availability to work overtime, or the actual working of overtime. An employee will fall within the definition of a Continuous Shiftworker based upon their ordinary hours, or their availability to work ordinary hours. Overtime does not come into the equation.
(i) Clause 23.2 of the Agreement is a clause that is specific to Continuous Shiftworker 'rosters'. In other words, clause 23.2 is not the gateway by which one determines whether or not an employee is, or is not, a Continuous Shiftworker. Rather, it concerns the parameters by which a Continuous Shiftworker will (or is able to) be rostered.
(j) Clause 23.2 provides that the "roster" for a Continuous Shiftworker will include ordinary hours rostered across all seven days of the week, and across the full 24 hour period (i.e. day, evening, and night shifts). In short, a Continuous Shiftworker can have their rostered ordinary hours arranged across these two parameters (as compared to Monday to Friday Dayworkers and Shiftworkers (under the Agreement), who cannot). A Continuous Shiftworker must therefore be available to work the roster (or ordinary hours) set pursuant to clause 23.2. What hours a Continuous Shiftworker actually works is dependent upon the roster that is set by the Respondent. The fact that the Respondent may set a roster that does not continue through 24 hours of the day is a matter for the Respondent. That does not detract from the fact that a Continuous Shiftworker (being an employee who is not a Monday to Friday Dayworker, or a Shiftworker) must be available to work whatever roster is set by the Respondent under clause 23.2 of the Agreement).
(k) The term 'availability' does not require actual attendance. In other words, availability comes before being rostered to work, and before actually attending for work.
"Where an FSE is available to work but not allocated to work on a public holiday (including Closed Port Days) as specified in the Award, that employee will be credited with seven (7) hours to be deducted from their accumulated hours." (emphasis added)
"[42] Finally, we turn to the proper construction of the term 'available' in clause 30.1 (b). The Appellant [MUA] contends that the term ' available 'should have been interpreted to mean: both not actually working and not unavailable for work by reason of being on a form of approved leave.
[44] The Appellant [MUA] noted - correctly - that the only evidence of the purpose behind the inclusion of the words "if available to work" was from the respondent's witnesses, and was directed towards what the respondent subjectively wanted to achieve. As described by them, the words were intended to require employees to make themselves available in order for clause 30.1(b) to operate. That subjective intention of the Respondent was, essentially, the only factor consistent with the conclusion ultimately accepted by the Commissioner: that appears to have been "the purpose" contemplated by the Commissioner.
[45] The words "is available to work" must be considered objectively, and in the context of the Agreement as a whole. Clause 30.1(b) applies to all public holidays, not merely those that are also CPDs. The conclusion that positive steps are required in order to be considered 'available', was inconsistent with the common position otherwise adopted by the parties, and accepted by the Commissioner: public holidays (other than Closed Port Days) are treated as normal working days. On the construction adopted by the Commissioner, employees will not be credited with the accrued hours for the public holiday, unless they actually work or take steps to positively confirm that they are available to work. There is nothing in the agreement that provides for such a process for public holidays.
[46] Under the terms of the Port of Adelaide EA there is a general presumption that FSEs are available to work. Under the terms of clause 4.1.4 they 'shall be available for totally irregular allocation in accordance with the notification procedures of this Agreement.' However under clause 9.1.2 these employees may make themselves unavailable for work on up to 42 days within a 12 month period.
[47] FSEs can be required to work on any day other than when they are on approved leave or on approved time off under clause 9.1.2. The most natural reading is that an FSE is 'available to work' at any other time. We do not see anything in the context or purpose of the clause to give it any other reading. Accordingly, we consider that the Commissioner was in error in finding that the term 'available to work' in clause 30.1(b) requires the employee to volunteer or otherwise confirm their availability to work.
[49] However we find the Decision was in error insofar as it found that the words 'is available to work' in clause 30.1(b) mean that the employees in question must volunteer and/or otherwise confirm their availability to work on the day in question. We uphold that part of the appeal. We find that FSEs are 'available to work' as long as they are not at work, and are not unavailable to work by reason of being on a form of approved leave or approved time off in accordance with clause 9.1.2 of the Agreement."[34]
Mr Chris Neiberding, Senior Industrial Officer, appeared for the Australian Maritime Officers' Union (AMOU) (Applicant).
Mr Brendan Milne, Partner, Kingston Read lawyers, appeared (with permission) for DP World Melbourne Limited, DP World Sydney Limited, DP World (Fremantle) Limited, and DP World Brisbane Pty Limited (Respondents).
[1] [2024] FWCA 2697 (22 July 2024), AE525521, PR777213.
[2] [2017] FWCFB 3005, at [114]. See also James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566, at [65].
[5] DP World Supervisors & Yard Planners Enterprise Agreement 2015 [2015] FWCA 8321, AE416907, 2 December 2015 2021; DP World Supervisors & Yard Planners Enterprise Agreement 2020 [2021] FWCA 644, AE510345, 9 February 2021.
[7] The Mondelez case also confirmed that part time employees receive personal/carer's leave on a pro-rata basis.
[8] DP World Supervisors & Yard Planners Enterprise Agreement 2020 [2021] FWCA 644, AE510345, 9 February 2021.
[9] Applicant's Submissions, at [8]-[9], CB, pp.86-87.
[10] Digital Hearing Book (Court Book (CB), pp.126-129. See also Ms Emma Higginbottom Statement, at [10]-[14] (CB, p.211).
[11] In relation to personal/carer's leave discrepancy arising from the audit, see Transcript (Ms Higginbottom XXN), at PN83-PN87, PN92-PN93, PN108, and PN130.
[13] CB, pp.86-94, and 213-219. Transcript, PN145-PN155.
[16] Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829, at [40]-[41] (common understanding principles). See also LHMWU v Prestige Property Services Pty Ltd [2006] FCA 11, at [44] (common inadvertence), and HSU v Ballarat Health Services [2011] FCA 1256, at [79] (knowledge of employee voting cohort).
[17] See CPSU, the Community and Public Sector Union v Serco Australia Pty Ltd [2021] FWCFB 6045, at [48]-[50]; Note paragraphs [22] to [29] (pages 4-5, Item 5 - Subclause 55(5)) of the Supplementary Explanatory Memorandum to the Fair Work Bill 2008 (Australian Senate).
[19] Bentley Statement (filed by the AMOU), at [9], CB, p.98. Mr Bentley was not cross-examined.
[20] Rafferty Statement (filed by the AMOU), at [3], CB, pp.101 and 105. Ms Rafferty was not cross-examined. Note also, Transcript, PN220-PN224.
[21] Rafferty Statement (filed by the AMOU), at [5]-[7], and [9]-[11], CB, p.101, and 111-125.
[22] Ibid, at [15]-[16], CB, p.102.
[23] Higginbottom Statement (filed by the Respondent), at [5]-[7], CB, p.210.
[24] Ibid, at [15]-[17], CB, pp.211-212.
[28] CB, pp.201-203 (footnotes omitted).
[31] See also the decision issued by the Commission on 3 August 1999 in [R7753].
[32] On 22 May 2009, the Commission published a Full Bench statement and Stage 3 exposure drafts ([2009] AIRCFB 450), including the Stevedoring Industry Award 2010 exposure draft. On 4 September 2009, the Commission published a Full Bench decision [2009] AIRCFB 826, and the Stevedoring Industry Award 2010. The annual leave provisions remained the same as in the exposure draft published on 22 May 2009.
[34] Maritime Union of Australia v Qube Ports Pty Ltd [2015] FWCFB 3164, at [42], [44]-[47], and [49] (per Hamberger SDP, Booth DP, and Cargill C).
Printed by authority of the Commonwealth Government Printer
Australian Maritime Officers' Union, The
DP World Melbourne Limited; DP World Sydney Limited; DP World
Alleged dispute about matters arising under the DP World Supervisor, Yard Planner and Production Coordinator Enterprise Agreement 2024 - accrual and payment of personal/carer's leave under enterprise agreement following High Court decision in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union (AMWU) [2020] HCA 29; (2020) 271 CLR 495; entitlement to fifth week of annual leave for yard planners; meaning of the term "available to work"
13. As to the AMOU's reliance on past practices, as recognised by the Full Court in Target [Target Australia Pty Ltd v SDA [2023] FCAFC 66], that is simply insufficient to justify any particular construction. Even so, at best, the AMOU's evidence establishes a common inadvertence, rather than any common understanding between the parties. That is not enough, and even if it were (which Target makes clear it is not), the parties specifically displaced those practices when they made the Agreement. Finally, the subjective intentions or expectations of the AMOU and its witnesses are wholly irrelevant.
(g) The Respondents rely upon s.87 of the Act and case law (including O'Neill v Roy Hill Holdings Pty Ltd [2015] FWC 2461 (Roy Hill)), to argue that yard planners do not meet the criteria for an additional week of annual leave.
(2020) 278 FCR 566
(2020) 271 CLR 495