[2019] FWC 2502

Fair Work Act 2009

Section 739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Dispute about matters arising under enterprise agreement and the NES [s186(6)] - annual leave entitlement - continuous shift worker - "regular work Sundays and public holidays" - historical practice - interpretation of Agreement - roster change - not currently continuous shift workers - dispute resolved

[1] On 24 October 2018 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) filed a dispute notification in the Fair Work Commission (the Commission) under section 739 of the Fair Work Act 2009 (the FW Act). The application was amended by a substituted application dated 29 January 2019. The application was made by a Northern Area Organiser of the Union, Steven McMillan.

[2] The Respondent to the dispute is Genesee & Wyoming Australia Pty Ltd (Genesee & Wyoming or the employer).

[3] The subject matter of the dispute concerns the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2016 (the Agreement) and in particular the meaning of the definition of "continuous shift worker" in clause 7 of the Agreement and the consequent application of that phrase in clause 29.5 (Additional Annual Leave for Continuous Shift Workers).

[4] The AMWU is an employee organisation covered by the Agreement. The application was made to the Commission under clause 41.6 of the Agreement (Dispute Resolution Procedure).

[5] The application was the subject of conciliation on 5 November and 10 December 2018. Conciliation was conducted concurrently with an application by the employer related to the same Agreement (concerning different issues).[1] Conciliation resolved neither application though the employer's application subsequently resolved by agreement.[2]

[6] By decision dated 27 November 2018 I granted the employer permission to be represented by a legal practitioner.[3]

[7] On 14 November and 11 December 2018 I issued directions. A further directions hearing was held on 6 February 2019 at which I granted leave to the AMWU to amend its application.

[8] In advance of arbitration, written submissions were filed both by the AMWU (12 February and 12 March 2019) and by the employer (5 March 2019). A witness statement of Steven McMillan was filed by the AMWU and a witness statement of Megan Ann Griffin filed by the employer

[9] Hearing by private arbitration was conducted on 18 March 2019, at the conclusion of which my decision was reserved. I relisted the matter on 12 April 2019 to hear the parties further on factual matters concerning the working of rosters under the Agreement. An agreed clarification of the factual matrix was provided by the parties at that resumed hearing.

[10] Written and oral evidence was received from both Mr McMillan and Ms Griffin. The evidence of each was clearly given and can be relied upon.

[11] Although no agreed statement of facts was filed, the evidence of the witnesses and the content of written submissions provide a relatively straightforward factual matrix for the determination of this matter.

[12] Genesee & Wyoming Australia provide heavy haulage rail freight services in various states and territories of Australia including at the Whyalla steelworks in regional South Australia.

[13] The rail freight services business of Genesee & Wyoming is supported by a rolling stock maintenance function. Genesee & Wyoming employ AMWU members in the maintenance of rolling stock.

[14] Employees performing rolling stock maintenance work at Whyalla are covered by the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2016 (the relevant employees).

[15] The predecessor agreement covering this work at the site was the Downer EDI Rail South Australia and Northern Territory Enterprise Agreement 2010 - 2013 (the Downer EDI Agreement).

[16] The context in which the Downer EDI Agreement came to cover and then cease to cover the relevant employees at Whyalla is material to this decision.

[17] Between 1998 and 2014 Genesee & Wyoming outsourced rolling stock maintenance functions to a separate company, Downer EDI Rail Pty Ld. The Downer EDI Agreement covered the relevant work. It was approved by the Commission[4] to operate from 16 March 2011 with a nominal expiry date of 30 June 2013.

[18] In 2014 Genesee & Wyoming made a business decision to cease outsourcing rolling stock maintenance and perform this work in-house (insource). At Whyalla, this change occurred in May 2014. At that time, the Downer EDI Agreement continued to operate.

[19] In anticipation of the change, in March 2014, on the application of Genesee & Wyoming, the Commission made an order (under section 319 of the FW Act) that the Downer EDI Agreement cover non-transferring employees who performed work for Genesee & Wyoming.[5]

[20] Thus, between May 2014 and 18 November 2016 the relevant employees were employed by Genesee & Wyoming but under the terms of the Downer EDI Agreement.

[21] Following a period of bargaining between Genesee & Wyoming and its employees (including with the AMWU) a new Agreement was made (voted up) on 5 September 2016. The Agreement was approved by the Commission[6] on 11 November 2016 with a nominal expiry date of 30 June 2019.

[22] The Agreement commenced operation from 18 November 2016.

[23] According to the employer, the Agreement was "essentially a 'rollover' agreement which largely reflected the terms of the existing Downer EDI Agreement".[7]

[24] Until April 2016 rail freight services at Whyalla steelworks were provided to its then owner, the Arrium Group of Companies (Arrium).

[25] In April 2016 Arrium was placed into administration. A new owner subsequently purchased the Whyalla steelworks.[8] Genesee & Wyoming now provide heavy haulage rail freight services to the new owner.

[26] Upon the steelworks being placed into administration, the administrator sought changes to work practices. Genesee & Wyoming "determined to adopt a new roster pattern at Whyalla to improve operational efficiencies, and reduce costs."[9]

[27] It is agreed between the parties that prior to the roster change the relevant employees worked a four days on / four days off twelve hour shift roster on a continuous basis. Under this arrangement, over a given year employees worked an average of 26 Sundays and 5 public holidays each year.[10] This was the same roster pattern which Downer EDI Rail applied when it operated the site.[11]

[28] Since the roster change, the relevant employees have been working a 'hybrid' roster as follows:[12]

a. Four days on / four days off rotating 12 hour day shift and night shift roster (blue line and yellow line shifts) for between (a minimum of) 31 weeks and (a maximum of) 36 weeks of the year (Roster 1); and

b. Monday to Friday 8 hour day shift for between (a minimum of) 16 weeks and (a maximum of) 21 weeks of the year (Roster Two).

[29] The employer gave written notice to the relevant employees of the roster change on 15 September 2016.[13]

[30] The roster change took effect from 4 October 2016.

[31] Across a given year, a relevant employee works the combination of both roster 1 and roster 2.

[32] A consequence of the new roster is that over a given year employees work an average of either 16 Sundays and 6 public holidays each year (blue line shift workers) or an average of 20 Sundays and 10.5 public holidays each year (yellow line shift workers).[14]

[33] At the time of making the roster change, the employer formed the view that, as a consequence of the roster change, the relevant employees were no longer "continuous shift workers" within the meaning of the Downer EDI Agreement or under the newly negotiated Agreement.

[34] As such, the employer concluded that the relevant employees were no longer, from the time of the roster change, entitled to accrue an extra week of annual leave per year. The employer notified employees in the following terms:[15]

"Please be advised that the change in roster cycle (i.e. the roster applicable to you), has reduced the number of Sundays and/or public holidays you are required to work in a year therefore, you are no longer deemed a continuous shift worker as per clause 6 of the Downer EDI Rail South Australia and Northern Territory Enterprise Agreement 2013-2016 (Agreement). This means that you will not be entitled to accrue an extra week of annual leave per year of continuous service. Your annual leave balance immediately prior to the commencement of the new roster will not be affected. However, going forward (as at commencement of the new roster cycle), you will be entitled to 4 weeks of annual leave for each year of continuous service."

[35] The AMWU on behalf of employees disputed this position. It contended at the time, and maintains the view, that the relevant employees were "continuous shift workers" under the Downer EDI Agreement until 18 November 2016 and have remained so under the newly negotiated Agreement from 18 November 2016, notwithstanding the roster change.

[36] The matter remained unresolved between the parties and a dispute was notified by the AMWU in accordance with clause 41 of the Agreement.

[37] The issue was discussed between relevant personnel in accordance with clause 41.2.

[38] No agreement was reached and the matter was then referred to the Commission for conciliation and arbitration pursuant to clause 41.6.

[39] The AMWU contend that employees working roster 1 and roster 2 are entitled to one extra week of annual leave per year. There is no dispute as to the characterisation of the primary issue to be determined. It can be succinctly stated as follows:

Question 1: are the relevant employees who work the combined roster 1 and roster 2 across a given year "continuous shift workers" and entitled to one week of additional annual leave per year?

[40] Two subsidiary questions relating to pro rata entitlements arise:

Question 2: are the relevant employees entitled to the pro rata value of one week extra annual leave per year for the period of time they are working roster 1?

Question 3: are the relevant employees who have been working and would, but for their employment ceasing, have worked combined roster 1 and roster 2 across a given year entitled (on their employment ceasing) to the pro rata value of one week of additional annual leave?

[41] There is no dispute between the parties that if the workers are "continuous shift workers"' (as defined in the Agreement) then they are entitled by virtue of the provisions of clause 29.5 to an additional week of annual leave per year (or pro rata thereof). Clause 29.5 states:

Additional Annual Leave for Continuous Shift Workers

A full or part time employee who is engaged as a Continuous Shift Worker as defined, has a pro rata entitlement of 1 week (38 hours) of additional annual leave.

[42] I note that this provision is not inconsistent with the shift worker annual leave entitlement for agreement covered employees under the National Employment Standards (NES) in the FW Act.[16] Accordingly, I determine this dispute by reference to the provisions of the Agreement.

[43] In essence then, the primary issue in dispute is whether the relevant employees are "continuous shift workers" within the meaning of clause 7 of the Agreement. Unless they are "continuous shift workers", no extra week of annual leave accrues in whole or on a pro rata basis.

Question 1: are the relevant employees who work the combined roster 1 and roster 2 across a given year "continuous shift workers" and entitled to one week of additional annual leave per year?

[44] Clause 7 of the Agreement provides:

"Continuous Shift Worker" means an employee who is continuously rostered to work shifts 24 hours a day for seven (7) days a week and regularly works on Sundays and public holidays.

[45] The AMWU submit that the relevant employees are "continuous shift workers" for the following reasons:

• They are for up to 36 of 52 weeks of the year working roster 1 whereby they are continuously rostered to work shifts across periods of 24 hours a day and seven days a week;

• Working either 20 Sundays and 10.5 public holidays per year (yellow line) or working 16 Sundays and 6 public holidays per year (blue line) is sufficient to conclude that the employees are "regularly working on Sundays and public holidays";

• The employer has not in the past applied a restrictive approach to the concept of what is "regular" work on Sundays and public holidays. Upon insourcing the work in May 2014 the employer continued the practice of the previous employer to provide five weeks annual leave in circumstances where employees were regularly working 26 Sundays and 5 public holidays per year;

• The number of hours per day currently worked during a shift on Sundays or public holidays is relevant (12 hours) because the extra week of annual leave is intended to compensate for time away from family on Sundays and public holidays. For example, 26 Sundays of 12 hour shifts equals 312 hours of Sunday work. This is equivalent to 39 Sundays of 8 hour shifts. Likewise, 20 Sundays of 12 hour shifts equals 240 hours of Sunday work. This is equivalent to 30 Sundays of 8 hour shifts.

[46] Genesee & Wyoming submit that the relevant employees are not "continuous shift workers" for the following reasons:

• consistent with what is said to be long-standing industrial history, the composite phrase "regularly works on Sundays and public holidays" in clause 7 means a minimum of 34 ordinary time Sunday shifts per year; and

• even if that long-standing meaning was displaced in favour of the previous site practice at Whyalla, that site practice recognised an entitlement only where employees performed 26 ordinary time Sunday shifts and 5 ordinary time public holiday shifts per year. None of the relevant employees meet that threshold on the employer's current roster system.

[47] There is little dispute between the parties as to the appropriate principles that should be applied to the construction of the Agreement. An interpretation of clause 7 of the Agreement should be founded on its language used in light of the Agreement read as a whole and its industrial, commercial and legislative context and purpose.[17]

[48] Clause 7 has two limbs. To be a "continuous shift worker" as defined an employee needs to be continuously rostered to work shifts 24 hours a day for seven (7) days a week and regularly work on Sundays and public holidays.

[49] The primary focus of submissions before me was whether the second limb of this definition was met; that is, whether a maintenance employee under the Agreement "regularly works on Sundays and public holidays".

[50] I take judicial notice of the fact that in South Australia there are 52 Sundays and 13 public holidays in a given year (65 days in combination).[18]

[51] I have found on the evidence that the relevant employees at Whyalla over a given year work an average of either 16 Sundays and 6 public holidays (blue line shift workers) or an average of 20 Sundays and 10.5 public holidays (yellow line shift workers).

[52] Does this constitute "regular" working of Sundays and public holidays?

[53] The phrase "regularly works on Sundays and public holidays" is not unique to this Agreement or unfamiliar to industrial regulation. The phrase has been the subject of past interpretation by the Commission and its predecessors including in the context of shift work and annual leave provisions. O'Neill v Roy Hill Holdings Pty Ltd[19] (Roy Hill) concerned the continuous shift worker annual leave entitlement for award or agreement-free employees under section 87(3) of the FW Act. Section 87(3) requires that such employees "regularly work(s) on Sundays and public holidays". On the facts in Roy Hill, the employees worked an average of 31 Sunday shifts per year. Williams C held that the employees did not "regularly work" on Sundays and public holidays, and were thereby not entitled to the shift worker annual leave entitlement under s 87(3) of the Act.

[54] In reaching this conclusion, Williams C traced the industrial history of the phrase. The Commissioner concluded that "an employee 'regularly works on Sundays and public holidays' if they have worked at least 34 Sundays and 6 public holidays in a year".

[55] The decision in Roy Hill and the line of authority it draws from the Commission's predecessors and state industrial tribunals suggest that the additional week of annual leave was not, in its conception at least, an entitlement that adhered to shift work per se, but rather served an identifiable purpose: it compensated employees for the inconvenience associated with working a substantial number of Sundays and public holidays.[20] Generally speaking, this industrial jurisprudence establishes, as Williams C concluded, that a shift worker should work at least 34 Sundays and 6 public holidays per year to be so entitled. The phrase "regularly works Sundays and public holidays" was intended to reflect that position. The threshold (of 34) was not an arbitrary figure: rather, it reflected the then prevailing industrial norm across industries that 7-day shift workers ordinarily worked 5/7ths of all Sundays and public holidays in a year.

[56] The task of the Commission in this matter is not to frame the policy intent of an industrial instrument. It is a narrower task: to interpret an Agreement and do so according to established canons of construction. That this Agreement uses the phrase "regularly works Sundays and public holidays" and does so for similar purposes to section 87(3) of the FW Act renders the decision and potted history in Roy Hill relevant notwithstanding that section 87(3) deals with the NES as it applies to award or agreement-free employees. The decision in Roy Hill is not however decisive or determinative. This Agreement is an instrument of those who made it; not the Commission. It has its own terms, context and industrial history.

[57] I now consider the language of the Agreement.

[58] In the context of clause 7 of the Agreement, the word "regular" has a temporal meaning; it requires a level of frequency in the sense that the number of Sundays and public holidays worked in a given year must be of sufficient number to allow it to be objectively said that those days are "regularly worked". I do not interpret the word "regular" so narrowly as to compel a systematic pattern of working Sundays and public holidays across given weeks or periods. Sufficient numerical frequency across a given year, even if the product of random or non-systematic patterns of work, would be capable of constituting "regularly working" on Sundays and public holidays, at least for the purposes of the Agreement.

[59] Taking the language of the Agreement into account, I see no reason to deviate in any significant manner from the underlying proposition drawn from Australian industrial jurisprudence that work in the order of 34 Sundays and 6 public holidays is required to constitute "regularly" working on Sundays and public holidays. The Agreement contains no special definition of the phrase "regularly works Sundays and public holidays" nor any unique use of the adverb "regularly". The subject-matter of the phrase in the Agreement involves the same category of days (Sundays and public holidays) as the broader industrial jurisprudence.

[60] Thirty-four Sundays and public holidays in a given year represents approximately two-thirds of available Sundays and public holidays. At that level, work on those days across a year is consistent with the adjective "regular". Whilst there is an element of degree inherent in the word "regularly", from purely a construction point of view, a materially lesser amount would not constitute "regularly working" those days. For example, without particular evidence of unique context or common intention, working only one half or less of available Sundays and public holidays each year would not be working those days on a regular basis.

[61] I conclude that the ordinary meaning of the phrase "regularly working on Sundays and public holidays" in clause 7 of the Agreement is not materially different to its meaning in other industrial instruments that invoke that phrase for shift work and annual leave purposes; that is, that an employee must work at least approximately 34 Sundays and 6 public holidays in a given year to be entitled to the extra week of annual leave.

[62] However, this does not mean that if under this Agreement the number of Sundays and public holidays worked per year is less than 34 Sundays and 6 public holidays then a conclusion is to be automatically drawn that Sundays and public holidays are not regularly worked. Surrounding circumstances (drawn from objective background facts including the industrial context known to the 'parties') can inform the interpretation of an Agreement where there are equally open alternate interpretations of its terms or where language used is ambiguous.[21]

[63] Are there surrounding circumstances that displace, render uncertain or otherwise inform the ordinary meaning of the phrase "regularly works on Sundays and public holidays"?

[64] Both parties referred me to (and in part rely upon) site practice; that is, the recent industrial history and application of this phrase in the context of the relevant employees at Whyalla. These objective background facts are relevant surrounding circumstances but (consistent with authority[22]) I apply a cautious approach to their utility in interpreting the Agreement particularly as they relate to pre-Agreement conduct (including the conduct of a former employer).

[65] In this matter, the relevant employees at Whyalla were provided by their former employer (Downer EDI) with an extra week of annual leave for working 26 Sundays and 5 public holidays per year. More relevantly, for more than two years (from May 2014 to October 2016) Genesee & Wyoming continued to provide an extra week of annual leave for working 26 Sundays and 5 public holidays per year.

[66] Whilst Genesee & Wyoming did so under the terms of the agreement it inherited when it insourced the maintenance work, it neither did so under protest nor by any express reservation of its rights to take a different view as to the provision of the extra week. On the evidence before me, an inference can be drawn that it provided the extra week because it did not seek to disturb an existing industrial practice under the terms of an agreement it inherited. However, the evidence before me does not permit a further inference that the employer considered it to be a legal obligation under the Agreement that it must do so or that there was a common intention to that effect.

[67] It is relevant that when Genesee & Wyoming re-negotiated the Downer EDI Agreement with its employees (and the AMWU) in 2016, the employer agreed to retain the definition of "continuous shift worker" in the Agreement in the same form as it existed in the Downer EDI Agreement.

[68] However, I find on the evidence before me that the removal of the extra week of annual leave in October 2016 was not a consequence of the re-negotiation of the Agreement or the terms of the particular industrial instrument applying at a particular time. It was triggered by the roster change, and the roster change alone. The removal of the extra week of annual leave occurred before the new Agreement came into operation, but upon the roster change commencing.

[69] Whether the employer held a subjective belief that the agreement it inherited or the new Agreement it negotiated required the payment of five weeks annual leave when working a roster of 26 Sundays and 5 public holidays across a year is not relevant to the resolution of this dispute for two reasons. Firstly, whilst common intention may be relevant to the construction of an industrial instrument (particularly if there is ambiguity)[23], a subjective belief held singularly by an employer or by employees is not[24]. There is no evidence before me that the meaning of the phrase "regularly works on Sundays and public holidays" was the subject of negotiation for the new Agreement let alone the product of a common intention. Secondly, before the Agreement came into operation the issue had become moot. The roster had changed in the preceding month due to cost savings being sought in light of the steelworks being under administration. Upon the roster change, fewer than 26 Sundays per year were worked on either the yellow line or blue line roster.

[70] I do not need to decide whether the site practice of the employer in providing the extra week of annual leave for more than two years whilst the relevant employees were working 26 Sundays and 5 public holidays per year is sufficient, in the context of this workplace and this Agreement, to meet the second limb of the definition of "continuous shift worker". On the facts before me, under the new roster none of the maintenance workers, whether yellow line workers or blue line workers, meet a sufficient level of regularity. I am not satisfied that working either 20 Sundays and 10.5 public holidays per year (yellow line) or working 16 Sundays and 6 public holidays per year (blue line) is sufficient to conclude that the employees are "regularly working on Sundays and public holidays. Taking the example of yellow line employees (as it presents the AMWU case at its highest) the level of frequency is only 38.5% of Sundays being worked. This is not a level of frequency that accords with the ordinary meaning of the word "regularly". Nor does it accord with the meaning of that phrase in its industrial context. It is substantially below the threshold frequency identified in Roy Hill. It is materially below the pre-October 2016 site practice at Whyalla.

[71] I have considered whether the clause 7 definition can be applied by cumulatively combining the number of Sundays and public holidays worked over a given year (30.5 for yellow line workers and 22 for blue line workers) and assessing that frequency against the total available combined Sundays and public holidays in a year (65 days). Even applying this cumulative approach, the combined tallies fall short of half of overall Sundays and public holidays combined being worked (46.7% for yellow line workers and 33.8% for blue line workers). At those levels I am still unable to conclude that Sundays and public holidays are "regularly" worked.

[72] I have also considered the AMWU submission that 12 hour shifts are currently worked on Sundays and public holidays, and that this provides a greater number of hours away from family than in eras when 8 hour shifts were worked, both on particular Sundays and as an annual total. I do not however consider this alters the position.[25] The clause 7 definition refers to regular work on Sundays. It invokes the concept of Sundays as a day. It does not do so by reference to the number of hours of Sunday work. Whilst absence from family on Sundays (and public holidays) is relevant to the policy that underpins the provision of the extra week of annual leave, the language used in an industrial instrument is the expression of the policy intent of those who framed the instrument. The Commission when interpreting an industrial instrument is not undertaking a policy task. It cannot substitute a different meaning to the language used in order to give effect or better effect to the policy intent.[26] In any event, in respect of this worksite the roster pattern immediately prior to the roster change provided for 12 hour (not 8 hour) shifts.[27]

[73] Given that the second limb of the definition of "continuous shift worker" is not made out, it is not necessary to determine whether over a given year the pattern of shift work at this workplace sees employees fall within the first limb of the definition. There is however evidence that provides prima facie support for this proposition. The employer has acknowledged to the AMWU that under the current roster pattern "Genesee & Wyoming operates shifts on a continuous 24 hours a day 7 days a week basis".[28] Exhibit MG2 suggests this is so.

[74] The answer to question 1 is 'no'. The relevant employees who work the combined roster 1 and roster 2 across a given year are not currently "continuous shift workers". They are therefore not currently entitled to one week of additional annual leave per year.

Question 2: are the relevant employees entitled to the pro rata value of one week extra annual leave per year for the period of time they are working roster 1?

[75] An alternate submission advanced by the AMWU is that the definition of "continuous shift worker" can be construed by reference to the roster pattern of roster 1 only or only for the period that roster 1 is worked.

[76] In support of this submission the AMWU refers to section 87(2) of the FW Act which provides that annual leave accrues progressively during a year of service.

[77] I do not agree that either the Agreement (properly construed) or section 87(2) of the FW Act lend support to this conclusion.

[78] No relevant employee is employed by Genesee & Wyoming to work roster 1 only or roster 2 only. A maintenance employee is contracted to work, in a given year, the combined roster 1 and roster 2. As both rosters are worked by the same employee, it is the combination of those rosters which provide the factual underpinning for the application of the clause 7 "continuous shift worker" definition in clause 7 (and thereby the application of clause 29.5).

[79] Applying the terms of an industrial instrument (however interpreted) against an incomplete set of facts risks providing or denying wages and conditions of employment contrary to law. It also carries the risk of discrediting the integrity of the relevant provision.[29] It is no more legitimate for a union to assert rights against an incomplete snapshot in time as it would for an employer to deny rights by reference to its own different but similarly incomplete time-frame.

[80] To answer the question whether an employee "regularly works on Sundays" within the meaning of the definition in clause 7 by only taking into account the rostered period of weeks when Sundays are regularly worked but ignoring the period of rostered weeks when Sundays are not regularly worked would be to selectively apply clause 7 against an incomplete set of facts.

[81] The role of the Commission is to objectively apply the language of an Agreement to the facts as a whole; in this case the complete working pattern a maintenance employee is contracted to perform. That means taking into account the pattern of work under roster 1 and roster 2 combined.

[82] Section 87(2) of the FW Act does not alter this position. That subsection provides as follows:

"87(2) An employee's entitlement to paid annual leave accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year.

Note: If an employee's employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends."

[83] Section 87(2) applies equally to employees who are entitled to the NES standard of four weeks of annual leave (not shift workers within the meaning of section 87) and of five weeks of annual leave (for shift workers within the statutory definition[30]). Whether an employee falls within the statutory definition of "shift work" determines the quantum of their annual leave entitlement - not the basis on which annual leave accrues. Section 87(2) provides for the progressive accrual of an existing entitlement in a year and across years of service. It does not create that base entitlement.

[84] Being a matter concerned with the interpretation of an existing agreement, this matter is distinguishable from proceedings in which the Commission has considered, as a matter of policy, that a part-year uniform entitlement should be created in an industrial instrument.[31]

[85] The answer to question 2 is 'no'. Not being "continuous shift workers", the relevant employees are not entitled to the pro rata value of one week extra annual leave per year for the period of time they are working roster 1.

Question 3: are the relevant employees who have been working and would, but for their employment ceasing, have worked combined roster 1 and roster 2 across a given year entitled (on their employment ceasing) to the pro rata value of one week of additional annual leave?

[86] The answer to this question is 'no' because (as I have concluded) the relevant employees who have been working and would, but for their employment ceasing, have worked combined roster 1 and roster 2 across a given year are not "continuous shift workers" as defined.

[87] However, if an employee was to work a different roster pattern so as to be a "continuous shift worker" (as defined) then the answer would be 'yes' as section 87(2) of the FW Act would then have application. In that instance, pro rata annual leave on termination would be payable for the annual leave progressively accrued during service (based on an entitlement of five weeks of annual leave each year).

[88] I add one concluding observation.

[89] This dispute only concerns the application of the Agreement to current working arrangements amongst relevant employees at Whyalla, South Australia. Whilst the scope of the Agreement extends to the Northern Territory, no dispute was notified concerning the application of the Agreement in the Territory. I note that the AMWU indicated by way of submission that five weeks of annual leave is provided by the employer to its employees working in the Northern Territory. I note that the employer, in response, indicated that differing rostering arrangements are said to apply in the Northern Territory. I did not take extensive evidence on those matters as the dispute before me concerned only working arrangements at Whyalla. This Decision does not concern the Agreement insofar as it operates in the Northern Territory.

[90] Finally I take the opportunity to record the Commission's appreciation for the preparation of this matter for hearing and for the clarity of advocacy by both Mr Grealy for the AMWU and Mr Pollock for the employer, and to officers of the union and the company who instructed them.

[91] The dispute as notified is resolved in accordance with this decision.

A. Pollock, with permission, for Genesee & Wyoming Australia Pty Ltd

[1] C2018/6260 filed 7 November 2018 and conciliated on 10 December 2018

[2] At the request of the parties, a Statement by the Commission was issued on that matter : [2019] FWC 2279

[3] Decision [2018] FWC 7204

[4] Decision 8 March 2011 O'Callaghan SDP [2011] FWAA 1481

[5] Order 24 April 2014 O'Callaghan SDP; the Order operated from 24 April 2014

[6] Decision 11 November 2016 Cirkovic C [2016] FWCA 8134

[7] GW1 Statement of Megan Griffin paragraph 15

[8] A new owner (GFG Alliance owned by the Gupta Family) subsequently purchased the Whyalla steelworks in 2017. Genesee & Wyoming Australia provide heavy haulage rail freight services to the new owner

[9] GW1 Statement of Megan Griffin paragraph 23

[10] AMWU1 Statement of Steve McMillan paragraph 5; GW1 Statement of Megan Griffin paragraph 24

[11] GW1 Statement of Megan Griffin paragraph 24

[12] The agreed position of the parties expressed in proceedings on 12 April 2019 was that in a given year roster 1 is worked for a minimum of 31 weeks and a maximum of 36 weeks, and roster 2 is worked for a minimum of 16 weeks and a maximum of 21 weeks. This clarified the evidence at AMWU1 Statement of Steve McMillan paragraph 7 and GW1 Statement of Megan Griffin paragraph 26

[14] GW1 Statement of Megan Griffin paragraph 34 and audio transcript 18.3.2019 10.54am. The agreed position of the parties expressed in proceedings on 12 April 2019 was that if roster 1 was exclusively worked across a given year (which since the roster change it has not been, but was prior to the roster change) then roster 1 would result in 26 Sundays and 5 public holidays being worked

[16] Section 87(1)(b)(ii) FW Act and section 196 FW Act

[17] AMWU v Berri Pty Ltd [2017] FWCFB 3005 (Berri); AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447; Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182; Short v Hercus (1993) 40 FCR 511

[18] Not taking into account that every Sunday in South Australia is nominally a public holiday under the Holidays Act 1910 (SA)

[19] [2015] FWC 2461

[20] In re Shiftworkers Case 1972 [1972] AR 633 at 659

[21] Berri at [114] principles 10, 11 and 12; Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35]

[23] Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352; Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; (2015) 256 CLR 104 at [50]

[24] Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; (2015) 256 CLR 104 at [50]

[25] See ASU v Western Power Corporation (16 March 2004) AG818831 PR944613 at [22] - [25]

[27] AMWU1 Statement of Steve McMillan paragraph 5

[28] MG3 Email Megan Griffin to Steve McMillan 10 April 2017 6.29pm

[29] Media Entertainment and Arts Alliance and Theatrical Employees (Sydney Convention and Exhibition Centre) Award 1989 Print M7325 at 25-26

[31] 4 Yearly Review of Modern Awards - Alleged NES Inconsistencies [2015] FWCFB 3023 at [11] - [12]

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