Fair Work Commission|2022-07-20

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v Visy Packaging Pty Ltd [2022] FWC 1800 (20 July 2022)

s.739 - Dispute resolution

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

Alleged dispute about any matters arising under the enterprise agreement and the NES [s186(6)]

[1] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and Visy Packaging Pty Ltd (Visy) are in dispute about the appropriate payments to be made to Lambi Trimcevski who is engaged to work a roster pattern of six shifts of 12 hours, and one shift of eight hours duration each fortnight - an average of 40 hours per week under the Visy Packaging Pty Ltd (Coburg) Collective Agreement 2019 (Agreement). Mr Trimcevski works these shifts on a production line at Visy's manufacturing facility at Coburg known as "tapered ends". A second issue arose during the course of the Commission dealing with the above dispute which concerns whether Visy may under the Agreement change the tapered ends employees' roster without majority agreement. This decision determines the dispute by arbitration as authorised by s 739 of the Fair Work Act 2009 and the dispute settlement term of the Agreement.

[2] The dispute has some history. It was initially allocated to Commissioner Harper-Greenwell, who heard the matter but was unable to determine it for reasons that need not be canvassed here. On 19 August 2021, the Commissioner issued directions in which she articulated two questions that required determination as follows:

Question 1: Under the Agreement, is [Visy] entitled to change the tapered ends employees' roster without their majority agreement?

Question 2: Does clause 40 of the Agreement apply to Lambi Trimcevski who is engaged to work a roster pattern of 6 shifts of 12 hours, and one shift of 8 hours duration each fortnight being an average of 40 hours per week?

[3] The matter has since been allocated to me for determination. The parties have agreed that I would determine the matter after reviewing the transcript of the hearing, and the written submissions and related written materials that were before the Commissioner, without the need for any further hearing. Before the Commissioner, the AMWU raised a jurisdictional objection to the determination of the first question above.

[4] The AMWU has since advised me that withdraws its jurisdictional objection to the Commission determining the first question. As to the second question the parties have requested that if I determine that clause 40 of the Agreement does not apply to Mr Trimcevski in the circumstances set out in the question, that I indicate which provision(s) of the Agreement apply in those circumstances.

[5] The relevant factual matters are not in dispute and are set out in an agreed statement of facts filed by the parties.

[6] In summary, Visy manufactures steel and aluminium food cans at a manufacturing site located at 36 Charles Street, Coburg, Victoria (Site). There are 11 production lines at the Site which manufacture different components of food cans. The "Tapered Ends Line" at the Site is used to manufacture end pieces that ultimately form part of a complete steel can.

[7] The dispute relates to employees working on the Tapered Ends Line at the Site. There are currently five employees working on the Tapered Ends Line:

Mr Trimcevski, who was first employed by Visy on 6 August 2019;

George Velonis, who was first employed by Visy on 26 July 2010;

Kim Ung, who was first employed by Visy on 28 February 2003;

Alma Mulipola, who was first employed by Visy on 9 November 2015; and

Tani Rere, who was first employed by Visy on 18 November 2019.

[8] The Agreement applies to these employees and commenced operation on 15 October 2019.

[9] The Agreement replaced the Visy Packaging Pty Ltd (Coburg) Collective Agreement 2015 (2015 Agreement) which then applied to Visy's employees who worked on the Tapered Ends Line.

[10] Prior to November 2018, employees on the Tapered Ends Line worked seven shifts of 12 hours per fortnight, as follows:

a total of 84 hours per fortnight or an average of 42 hours per week. Each shift commenced at 7am and ended at 7pm (Previous Roster).

[11] Employees working in accordance with the Previous Roster were paid 38 hours of ordinary time per week and four hours of double time. This payment was in accordance with clause 40 of the 2015 Agreement, which provided that employees working a 12 hour day shift would be paid as follows:

7:00am to 5:51 pm (10.85 hours) at ordinary time; and

[12] On or around 19 November 2018, to address a reduction in market demand for the steel products it produces at the Site, Visy introduced a roster change. The change in roster resulted in the employees on the Tapered Ends Line working six shifts of 12 hours and one shift of eight hours per fortnight, for a total of 80 hours per fortnight (or an average of 40 hours per week), as follows:

Week one: 3 x 12 hour shifts, 1 x 8 hour shift;

Week two: 3 x 12 hour shifts, (Current Roster).

[13] The Current Roster has remained in place.

[14] Each employee who was working on the Tapered Ends Line at the time of the roster change (which included Velonis, Ung and Mulipola, but not Trimcevski or Rare) signed a letter confirming the roster change. The letter also stated that "[a]part from the change of hours on the second Thursday of every fortnight, all other conditions remain as per the normal 12 hour roster covered by the Coburg EBA."

[15] On or around 5 June 2019, Visy identified that for working the Current Roster, employees were being paid:

10.85 hours at ordinary rates and 1.15 hours at overtime rates (double time) for each of the six shifts of 12 hours duration; and

8 hours at ordinary time rates for the one shift of 8 hours duration per fortnight,

equating to an average of 36.55 ordinary hours and 3.45 hours of overtime per week.

[16] Visy considered this to be an error, and that employees on the Tapered Ends Line working the Current Roster should be paid an average of 38 ordinary hours per week and two hours overtime. After identifying this error, on 5 June 2019 Mark Seeley, Visy's Plant Manager at the Site, wrote to the existing tapered ends employees and the AMWU to notify them of the error, and that Visy intended to commence paying employees for working the Current Roster according to what Visy considered to be the correct payment - 38 ordinary hours and two hours of overtime per week.

[17] A disagreement arose between Visy and the employees working on the Tapered Ends Line about the payment under the Current Roster, who did not want Visy to change the way they were paid.

[18] In September 2019, to avoid a dispute with the employees and the AMWU, Visy agreed with the existing tapered ends employees that Visy would not change the way in which the existing tapered ends employees were paid for working the Current Roster. However, Visy maintained that the correct mode of payment for employees working in accordance with the Current Roster was 38 hours of ordinary time and two hours of overtime per week, and confirmed its position with AMWU representative, Courtney Borg, during negotiations for the Agreement.

[19] On 25 November 2019, Mr Trimcevski commenced employment with Visy, working on the Tapered Ends Line. Mr Trimcevski is employed as a Line Maintainer (classification COBF21 Cob Food Metals CS Levi A 12h). He works in accordance with the Current Roster. His letter of appointment provides inter alia, that:

His indicative hours of work were 80 per fortnight; and

He would be paid 76 hours at ordinary time, three hours at time and a half, and one hour at double time.

[20] Mr Trimcveski has been paid in accordance with the terms in his letter of appointment since the commencement of his employment with Visy.

[21] In around August 2020, Mr Trimcevski initiated a dispute with his direct manager in relation to his remuneration being different to other employees on the Tapered Ends Line. As the dispute was not resolved, Dean Griffiths, an Organiser with the AMWU, wrote to Mr Seeley to escalate the dispute. In February 2021 Mr Griffiths and Mr Seeley met to discuss the dispute but it remained unresolved.

[22] On 11 February 2021, Mr Seeley wrote to Paris Lettau, an Industrial Officer with the AMWU and Mr Griffiths, stating that it had "no employee working to the Tapers roster in Clause 40 at that time." In February 2021, Mr Griffiths had further discussions with Jennifer Bowker, Visy's National Industrial Relations Manager and Mr Seeley in relation to rostering arrangements for the Tapered Ends Line, during which the parties also discussed the Trimcevski dispute but did not resolve it.

[23] On 9 March 2021, Mr Seeley and Tony Scott met with Mulipola, Ung, Velonis, and Lambi to discuss a potential roster change on the Tapered Ends Line. They did not agree to the change. In early March 2021, Mr Seeley had a discussion with Mr Geoff Moore, the AMWU delegate at the Site, about the Trimcevski dispute. Mr Seeley said that any dispute would need to resolve the payment error affecting the tapered ends employees, and not just Mr Trimcevski's payment. Mr Moore said that he would involve Mr Griffiths in further discussions about the payment issue.

[24] Self-evidently, the answers to the questions requiring determination will turn upon the proper construction of the Agreement. The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the agreement remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.[1]

[25] It is convenient to begin with a consideration of the second question.

[26] By clause 6.1 of the Agreement, the terms of the Manufacturing and Associated Industries and Occupations Award 2010, as varied from time to time (Manufacturing Award)[2] and the Graphic Arts General Award 2000 as in force on 1 March 2006, are incorporated terms of the Agreement.

[27] The remainder of clause 6 of the Agreement sets out some rules of construction consequent on the incorporation of the terms of the above-mentioned awards, some related consequential matters, and an additional limitation on the use of incorporated award facilitative provisions as follows:

6.2 If an incorporated Award term is inconsistent with an express term of this Agreement, the express term in the Agreement prevails over the Incorporated Award term to the extent of the inconsistency.

6.3 In this Agreement references to the Award shall mean the Award as incorporated into the Agreement unless the context requires otherwise.

6.4 Upon incorporating Award terms into the Agreement the incorporated Award terms are to be read as altered with the appropriate changes to make them provisions of the Agreement rather than provisions of the Award. So, for example, the loadings, penalties and allowances in the Award apply to the rate of pay due under this Agreement.

6.5 Where site management or employees wish to implement workplace change through the application of any facilitative provision in the Awards set out above, such changes will only be implemented by agreement between management, the majority of employees in the department(s) affected, and the relevant union/s concerned.

6.6 The parties agree that the intent of the provisions is to facilitate the efficient organisation and performance of work without adversely affecting the level of employee entitlements.

6.7 Except for any agreed changes under the facilitative provisions, or what is otherwise provided for in this Agreement, existing site payments and employment conditions will continue to apply as provisions of this Agreement.

[28] It is uncontroversial that only the terms incorporated from the Manufacturing Award, as varied from time to time are relevant.

[29] In working the Current Roster Mr Trimcevski is not a shift worker as Tapered Ends only operates on day shifts. He is a day worker. The fact that clause 40 of the Agreement provides that "Tapered Ends only operates on day shifts" does not mean that by working those "shifts" the employee is a shift worker. The Manufacturing Award describes shift work by reference to "continuous shift work", "Night shift" and "Afternoon Shift".[3] In that context, work performed only during the day on Monday through Friday is not shift work. The period of roster work may be described as a 'shift' in the sense that it is a work period, but not in its usual sense of describing each of two or more recurring periods in which different groups of workers do the same jobs in relay. But in any event, even if, in working the Current Roster Mr Trimcevski is a shiftworker, he is not a continuous shiftworker and so it makes no practical difference to the analysis which follows.

[30] Save for the reference to "ordinary time" payments for certain hours of work in clause 40, the express terms of the Agreement do not speak to ordinary hours of work. For that reference must be made to the provisions of the Manufacturing Award.

[31] Clause 17 of the Manufacturing Award deals with ordinary hours of work for day workers, and relevantly provides as follows:

(a) Maximum weekly hours and requests for flexible working arrangements are provided for in the NES.

(b) Facilitative provisions in clauses 17.2 to 17.5 operate in conjunction with clause 7.3 or clause 7.4 as relevant.

(a) Subject to clause 17.5, the ordinary hours of work for day workers are an average of 38 per week but not exceeding 152 hours in 28 days.

(b) The ordinary hours for day workers will not exceed 8 per day unless otherwise agreed in accordance with clause 17.5.

(c) The ordinary hours of work may be worked on any day or all of the days of the week, Monday to Friday. The days on which ordinary hours are worked may include Saturday and Sunday subject to agreement between the employer and the majority of employees concerned. Agreement in this respect may also be reached between the employer and an individual employee.

(d) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (6.00 am to 6.00 pm) may be moved up to one hour forward or one hour back by agreement between an employer and:

(i) the majority of employees at the workplace;

(ii) the majority of employees in a discrete section of the workplace; or

Different agreements may be reached with the majority of employees in different sections of the workplace or with different individual employees.

(e) Any change to regular rosters or hours of work is subject to the consultative provisions in clause 42.2.

(f) Any work performed outside the spread of hours must be paid for at overtime rates. However, any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose, for example, of getting the plant in a state of readiness for production work is to be regarded as part of the 38 ordinary hours of work.

(g) Where agreement is reached in accordance with clause 17.2(c), the rate to be paid to a day worker for ordinary time worked is:

(i) between midnight on Friday and midnight on Saturday - 150% of the ordinary hourly rate; and

(ii) between midnight on Saturday and midnight on Sunday - 200% of the ordinary hourly rate.

(h) A day worker required to work on a public holiday must be paid for a minimum of 3 hours' work at the rate of 250% of the ordinary hourly rate. The 250% rate must be paid to the employee until the employee is relieved from duty.

[32] Clause 17.5 of the Manufacturing Award deals with the method by which ordinary hours will be arranged other than as not exceeding eight hours per day as contemplated by clause 17.2(b) and provides:

17.5 Methods of arranging ordinary working hours

(a) Subject to the employer's right to fix the daily hours of work for day workers from time to time within the spread of hours referred to in clause 17.2(d) and the employer's right to fix the commencing and finishing time of shifts from time to time, the arrangement of ordinary working hours must be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned. This does not preclude the employer reaching agreement with individual employees about how their working hours are to be arranged. Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause 41.2.

(b) The matters on which agreement may be reached include:

(i) how the hours are to be averaged within a work cycle established in accordance with clauses 17.2, 17.3 and 17.4 and clauses 50.1 and 50.2 of Part 9 - Vehicle manufacturing employees of this award for vehicle manufacturing employees covered by clause 4.8(a)(xi).

(ii) the duration of the work cycle for day workers provided that the duration does not exceed 3 months;

(iii) rosters which specify the starting and finishing times of working hours;

(iv) a period of notice of a rostered day off which is less than 4 weeks;

(vii) arrangements which allow for flexibility in relation to the taking of rostered days off; and

(viii) any arrangements of ordinary hours which exceed 8 hours in any day.

By agreement between an employer and the majority of employees in the enterprise or part of the enterprise concerned, 12 hour days or shifts may be introduced subject to:

(i) proper health monitoring procedures being introduced;

(ii) suitable roster arrangements being made;

(v) a trial or review process being jointly implemented by the employer and the employees or their representatives.

(d) Payment for work on other than a rostered shift is in accordance with clause 33.2(g).

[33] Save for the circumstances in clause 40 of the Agreement to which I will shortly refer, the Agreement does not otherwise in express terms deal with overtime. Clause 32 of the Manufacturing Award regulates overtime, relevantly, as follows:

(a) Overtime work is any work performed outside the ordinary hours on any day or shift as defined by clauses 17.2, 17.3 and 17.4.

(b) For the purposes of clause 32, ordinary hours means the hours worked in an enterprise, fixed in accordance with clause 17 - Ordinary hours of work and rostering.

(c) Overtime work for a part-time employee is any work performed in excess of the hours agreed under clauses 10.3 and 10.4.

(d) The hourly rate, when computing overtime, is determined by dividing the appropriate weekly rate by 38, even in cases when an employee works more than 38 ordinary hours in a week.

(e) In computing overtime each day's work stands alone.

(f) Where clause 32 refers to an overtime rate as being calculated as a percentage of the ordinary hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual ordinary hourly rate if the entitlement is applicable to a casual employee.

NOTE: The casual ordinary hourly rate includes the casual loading prescribed by clause 11.1(a)(ii), as defined in clause 2 - Definitions.

32.2 Payment for overtime - other than continuous shiftworkers

Employees will be paid the following rates for overtime worked (except as otherwise provided in clauses 32.3, 32.6, 32.7, 32.8):

(a) 150% of the ordinary hourly rate for the first 3 hours; and

(b) 200% of the ordinary hourly rate thereafter.

[34] The Agreement also does not deal, in express terms, with the frequency of the payment of wages. Clause 27 of the Manufacturing Award so provides, relevantly as follows:

(a) Except as provided for in clause 27.1(b), wages must be paid weekly or fortnightly either:

(i) according to the actual ordinary hours worked each week or fortnight; or

(ii) according to the average number of ordinary hours worked each week or fortnight.

(b) By agreement between the employer and the majority of employees in the relevant enterprise, wages may be paid 3 weekly, 4 weekly or monthly. Agreement in this respect may also be reached between the employer and an individual employee.

[35] Clause 40 of the Agreement is, relevantly, in the following terms:

12 HOUR RULES· FULL PANEL, BEVERAGE, SIG SHIFT 1 & 2, TAPERED ENDS AND "12 HOUR" ELECTRICIANS

The following provisions simply sets out the existing 12 hour shift and payment rules applicable to 12 hour workers working in Full Panel, Beverage, Tapered Ends, Electricians and SIG Shifts 1, 2 & 3.

Full Panel and Beverage have Two Shifts - Day Shift and Night Shift

Day shift will start at 7.00am and finish at 7.00pm.

Night shift will start at 7.00pm and finish at 7.00am.

Tapered Ends currently is only operating on Day Shift

When an employee works rostered hours during Monday to Friday they will be paid 10.85 hours @ ordinary time, and 1. 15 hours @ double time.

Weekday annual leave ls paid at 10.85 hours @ ordinary, and 1.15 @ hours double time, plus loading of 17.5 % for Day and 30% for Night.

While on this roster an employee will accrue annual leave on the basis of 190 hours per year i.e. 5 weeks x 38 hours.

While on this roster employees will accrue personal leave as per clause 23 of this Agreement, i.e. 10 days at 12 hours.

[36] The AMWU contends that clause 40 of the Agreement provides for conditions that apply to employees working 12 hour shifts in various areas of the Site and later sets out various other entitlements such as weekend work, annual leave and personal leave. The AMWU contends that the principal difference between the payments set out in clause 40, and the payments which are currently made to Mr Trimcevski, is in the number of hours paid at ordinary time rates as compared to those paid at overtime rates, and the payment of overtime at double time compared to time and a half.

[37] The AMWU contends that clause 40 is expressed as applying to 12 hour workers, that term is not defined and that Mr Trimcevski is a 12 hour worker, given he overwhelmingly works 12 hour shifts. It says that the change brought about by the Current Roster, so that one out of seven shifts in a fortnight is a shift of eight hours, did not change that characterisation, and that clause 40 contains self-described payment rules which apply to the shifts worked by Mr Trimcevski.

[38] The AMWU contends the answer to question two is "yes" and says on the proper construction of clause 40 of the Agreement, Mr Trimcevski should be paid for each 12 hour shift worked, 10.85 hours at ordinary time rates and 1.15 hours at double time.

[39] The AMWU's construction is not correct and is not supported by a textual or contextual reading of clause 40 of the Agreement. There are several observations that may be made about clause 40 which provide context.

[40] First, the opening words to clause 40 of the Agreement which provide that "[t]he following provisions simply sets out the existing 12 hour shift and payment rules applicable to 12 hour workers working in . . . Tapered Ends . . .", suggest that that which is being recorded are the existing arrangements for 12 hour shift work and the existing payment rules which pertain to that work. The words "existing 12 hour shift and payment rules" appear to be a compound phrase so that the word "existing" applies to both the 12 hour shifts and the payment rules. A key phrase in the first sentence of clause 40 is "12 hour workers" working relevantly in tapered ends because it is only to that species of employee (a 12 hour worker) to whom the existing "payment rules" recorded later in clause 40 have application. This all suggests that the 12 hour shift and payment rules described in clause 40 are designed for a particular species of shift arrangement and not to work upon a 12 hour shift per se.

[41] Second, the recording of the arrangement in the Agreement is a carry-over of the arrangements which operated under the 2015 Agreement. Clause 40 of the Agreement, in its application to the working arrangements for which it provides, is inconsistent with the hours of work provisions in the Manufacturing Award and the overtime provisions. Clause 40 creates a spread of hours which is different to and beyond that for which clause 17.2(b) of the Manufacturing Award provides and creates an overtime entitlement which is greater than that found in clause 32.2 of the Manufacturing Award. These express provisions of the Agreement therefore prevail over the incorporated Manufacturing Award terms to the extent of the inconsistency.

[42] Third, the manner in which payment for ordinary and overtime hours is described in clause 40 of the Agreement, represents an averaging of ordinary time and a spreading of payments for both ordinary and overtime hours across each 12 hour shift worked. The overtime provisions of the Manufacturing Award earlier set out are plainly not applied both in quantum terms and in relation to the hours that would attract overtime under the Manufacturing Award. This may be illustrated by reference to the Previous Roster under which employees worked seven shifts of 12 hours per fortnight. In week one the employees worked four 12 hour shifts with each shift commencing at 7:00am and ending at 7:00pm. In week two the employees worked three 12 hour shifts, again with each shift commencing at 7:00am and ending at 7:00pm. Over the fortnight a total of 84 hours is worked. This results in an average of 42 hours per week.

[43] Clause 31.1(b) of the Manufacturing Award provides that for the purposes of the overtime provisions, "ordinary hours" means the hours worked in an enterprise, fixed in accordance with clause 17 - Ordinary hours of work and rostering. There is no evidence of how hours in the Previous Roster were fixed, but for present purpose assuming the hours were so fixed, in the result, ordinary hours for a shift were fixed at 12 hours, subject to the overriding mandate that ordinary hours not exceed 38 or an average of 38 per week. Overtime under the Manufacturing Award is payable at 150% of the ordinary hourly rate for the first three hours and 200% of the ordinary hourly rate thereafter.

[44] The Previous Roster was clearly an averaging hours roster over a fortnight. Therefore, if pursuant to clause 27.1(ii) wages are paid fortnightly according to the average number of ordinary hours worked each fortnight the result would be that there are 76 ordinary hours on average worked each fortnight to be paid at ordinary time and eight hours on average of overtime each fortnight paid at overtime rates - at 150% of the ordinary hourly rate for the first three hours and 200% of the ordinary hourly rate for the remaining 5 hours.

[45] The formula (or payment rule) deployed in clause 40 of the Agreement spreads ordinary and overtime payments evenly with a calculation for each 12 hour day or shift. Under the formula over a fortnight, an employee working the Previous Roster would be paid for seven shifts at 10.85 hours each shift at ordinary time (which with rounding is 76 hours per fortnight) and seven shifts at 1.15 hours each shift at overtime (which with rounding is eight hours per fortnight).

[46] However, the formula in clause 40 of the Agreement provides for the same rate of overtime for each hour - double time. In the result, under the formula an employee is effectively paid the equivalent of 16 hours of ordinary time for the eight hours of overtime worked in a fortnight - whereas under the Manufacturing Award (assuming payment under clause 27.1 of the Manufacturing Award was paid fortnightly upon the actual ordinary hours worked each fortnight) an employee would receive in a fortnight payment for overtime hours at the equivalent of 14.5 hours of ordinary time pay (3 hours at 150% of the ordinary rate of pay and five hours at 200% of the ordinary time pay). Fortnightly payments based on the average number of ordinary hours worked each week would yield a lesser result. An average of four hours overtime each week results in the equivalent of 6.5 hours of ordinary time or 13 in a fortnight.

[47] Fourth, although not expressly stated, when read as a whole clause 40 of the Agreement proceeds upon the basis that its operative effect is on the "existing 12 hour shift and payment rules" where 12 hour shift workers are full time employees and all shifts in a roster or work pattern are 12 hour shifts. So much is clear from the following textual indicators in clause 40:

The "Hours of Work Day" provision specifies the hours of work to be 7.00am to 7.00pm;

The associated payment rule specifies the split between ordinary and overtime payments in hours and minutes for each, and which total 12 hours;

The "Meal Breaks" provision provides for "four paid breaks during each shift - two 25 minute "lunch breaks" and two 15 minute "tea breaks";

The "Rostered Hours - Monday to Friday" provision provides that "[w]hen" an employee works rostered hours during Monday to Friday they will be paid 10.85 hours @ ordinary time, and 1.15 hours @ double time";

The "Hourly Loading - When Rostered Off" provision provides that "[w]hen an employee works non rostered hours on any day they will be paid 12 hours @ double time";

The "Annual Leave Accrual" provision provides that "[w]hile on this roster an employee will accrue annual leave on the basis of 190 hours per year i.e. 5 weeks x 38 hours";

The "Personal Leave" provision provides that "[w]hile on this roster employees will accrue personal leave as per clause 23 of this Agreement, i.e. 10 days at 12 hours" and further that "[w]here an employee is sick they will be paid 12 hours ordinary time";

The "Public Holidays" provision provides that when an employee is rostered:

"on for a public holiday, payment will be 3.5 times ordinary pay = 42 hours pay for 12 hours worked"; and

"off during a public holiday they shall be paid 12 hours ordinary time";

The "Long Service Leave" provision provides that "[l]ong service will be paid at 10.85 hours at ordinary time and 1.5 hours at double time" and that "[t]he"1.15 hours double time" will not be deducted from their long service leave accrual";

The "Superannuation - Rostered Hours Monday to Friday" provides that "[a]n employee will continue to be paid 9% superannuation on ordinary hours at single time" and that "[t]his means 10.85 hours for an employee on a 12 hour shift".

[48] The preponderance of these provisions are calibrated on the basis that each shift worked in the fortnight is of 12 hours duration and that employees working this arrangement are full time. Taken together, the various provisions of clause 40 of the Agreement point to the fact the a "12 hour shift worker" for the purposes of clause 40 is a full time employee working only 12 hour shifts across a roster period. Moreover, "rostered hours" to which reference is made at various points in clause 40, means rostered for 12 hours on a shift.

[49] That this so is underscored by the exclusion in the second sentence of clause 40 which provides that in relation to "SIG Shift 3 - the current agreed arrangement entered into in October 2014 is set out in Appendix 2". That appendix makes provision for a "3 X 12 Hour Shift Roster" and relevantly provides:

1st week @ 44 hours which consists of hours are correct of 3 x 12 shifts and 1 x 8 hour shift (flexible shift made up of 4 normal ordinary hours and a minimum 4 overtime hours as stipulated below). 2nd week@ 36 hours which consists of 3x12 hour shifts.

Two (2) week cycle @ ordinary hours per week = 2 x 38 hours = 76 hours

If the 1x8 hour shift (7am-3pm) is worked on a Wednesday (or as required at three (3) rostered working days notice).

First four (4) hours are calculated at the employee's normal ordinary rate of pay and overtime is calculated on the basis of the first three (3) hours @ T1 .5 and the balance of overtime @ T2.0.

[50] Corresponding allowance is made for the working of eight hour shifts in respect of the following:

12 hour shifts - as per the 12 hour shift rule specified in the existing enterprise agreement

8 hour shift- as per the 8 hour shift rule specified in the existing enterprise agreement

Annual leave and annual leave accruals as per the existing enterprise agreement

While the employee is working on this roster the employee will accrue personal leave as per clause 24 of the existing enterprise agreement.

Where an employee is sick they will be paid 12 hours ordinary time. This will apply on public holidays.

In the case when an employee is working on an 8 hour day they will be paid 8 hours ordinary time.

When an employee works non rostered hours on any day they will be paid for all hours worked @ double time.

Where an employee is rostered off during a public holiday they shall be paid 12 hours ordinary time except in cases when rostered on an 8 hour shift they will be paid 8 hours ordinary time.

Accrues at 13 weeks after 13 years continuous service at 38 hours per week.

[51] The contrast in the provisions is stark and underscores the kind of shift and rostering arrangement to which clause 40 is directed.

[52] A further matter of context arises from the formula adopted in clause 40 of the Agreement in its application to the Previous Roster compared to the Current Roster. The formula provides for payment of overtime at double time which is then applied to particular hours of a 12 hour shift so as to evenly distribute the overtime payments per shift. Under the Previous Roster, over each fortnight, an employee works eight hours of overtime and is paid the equivalent of 16 hours of ordinary time for the overtime worked - eight hours overtime at double time. Under the Current Roster, an employee works four hours of overtime in each fortnight, which at double time results in a payment of the equivalent of eight hours of ordinary time - four hours overtime at double time. Since under the Current Roster only six 12 hour shifts are worked in the fortnight which attract an overtime payment for the last 1.15 hours of a shift, the employee would be paid the equivalent of 13.8 hours ordinary time for the overtime actually worked. The value of the overtime penalty for each hour of actual overtime worked effectively increases from double time to more than treble time - four hours overtime at 3.45 times the ordinary rate to be precise. No explanation is given how this variable effective overtime penalty is intended by the operation of clause 40. There is no indication in clause 40 that this should be so, or that some ordinary hours of work would be treated as overtime. The only rational explanation is that clause 40 operates only on full time employees working only 12 hour shifts across a roster period.

[53] As should be evident from the discussion above a reading of clause 40 of the Agreement in context and as a whole invariably must lead to the conclusion that it is tailored for and confined to a particular species of working arrangement. And although the phrase "12 hour shift worker" is nowhere defined, read in the context of clause 40, it has an obvious meaning - a full time employee working only 12 hour shifts across a roster period. Under the Previous Roster, an employee working that roster was a 12 hour shift worker within the meaning of clause 40 of the Agreement. Such an employee was a full time employee and all shifts worked in the roster were 12 hour shifts. Under the Current Roster, an employee working that roster, although working a preponderance of 12 hour shifts, is not a 12 hour shift worker within the meaning of clause 40 of the Agreement because one shift each fortnight is an eight hour shift. Clause 40 is designed for and applied to a particular species of working arrangement and the Current Roster is a working arrangement not within that species. It follows that clause 40 has no application to the Current Roster. Had I been involved in this proceeding at the outset, I would have framed question 2 somewhat differently. Nonetheless, having regard to the analysis above, the answer to the question is "no".

[54] Having determined the answer to question 2 is "no", the question of which provisions of the Agreement apply to the hours of work undertaken by Mr Trimcevski under the Current Roster arises.

[55] As earlier noted, in September 2019, to avoid a dispute with the employees and the AMWU, Visy agreed with the existing tapered ends employees that it would not change the way in which the existing tapered ends employees were paid for working the Current Roster. It also appears that the Current Roster was the product of an agreement between, relevantly the tapered ends employees and Visy at that time.[4] That agreement was of course made while the 2015 Agreement was in operation. The agreement affected both the number of ordinary hours that could be worked on particular days and the spread of hours during which ordinary hours could be worked.

[56] The parties to this dispute accept that the Current Roster provides for daily ordinary hours of work of more than 8 hours and that the agreement made was one made pursuant to the facilitative provisions for arranging hours of work in the Manufacturing Award as then in force operating as an incorporated term of the 2015 Agreement. That agreement was carried forward to allow that arrangement to continue under the Agreement and so binds Mr Trimcevski.[5] He was not a current employee when the agreement was made and so he does not benefit from the payment arrangements which Visy had agreed to continue to apply to the then existing employees.

[57] Once this is understood, the relevant terms of the Manufacturing Award pertaining to hours of work and overtime earlier set out operating as incorporated terms of the Agreement regulate Mr Trimcevski's work under the Current Roster. The Current Roster averages ordinary working hours over a fortnightly roster period. Over that period Mr Trimcevski works an average of 76 hours of ordinary time and 4 hours of overtime. Pursuant to clause 32.2 of the Manufacturing Award overtime worked is paid at 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary hourly rate thereafter. In the result in each fortnight working the Current Roster, Mr Trimcevski is entitled under the Agreement to be paid for 76 hours at his ordinary time rate, 3 hours at 150% of his ordinary hourly rate and 1 hour at 200% of his ordinary hourly rate. This is precisely the way in which Visy pays Mr Trimcevski for working the Current Roster, and which in my view is correct.

[58] Returning then to the first question - whether under the Agreement, Visy is entitled to change the tapered ends employees' roster without their majority agreement.

[59] The AMWU contends that the extent to which Visy can change the daily hours of work without agreement, in accordance with clause 17.5 of the Manufacturing Award, is confined to changes to the time at which the ordinary hours are worked within the spread of hours, and the days on which those hours are worked (between Monday and Friday), but it must maintain the prevailing shift arrangement. And so, the AMWU says that Visy is entitled to change the tapered ends employees' roster without their majority agreement but only to the extent that is described in clause 17.5(a) of the Manufacturing Award.

[60] Visy contends that it may change the tapered ends employees' roster without their majority agreement but accepts that such discretion is not at large and is confined. Visy accepts that where a change to a roster requires resort to a facilitative clause of the Manufacturing Award operating as an incorporated term of the Agreement, the change can only be implemented through the facilitative clause process.

[61] As I earlier noted, the express terms of the Agreement do not deal with ordinary hours of work and so recourse must be had to the provisions of the Manufacturing Award operating as incorporated terms which pertain to ordinary hours of work. The relevant provisions of clause 17 of the Manufacturing Award are earlier set out.

[62] Under clause 17.2 of the Manufacturing Award, ordinary hours of work for day workers (which is apt to describe tapered ends employees), subject to clause 17.5 are an average of 38 per week but not exceeding 152 hours in 28 days. Ordinary hours must not exceed 8 hours per day unless otherwise agreed in accordance with clause 17.5. Clause 17.2(e) provides ordinary hours of work may be worked on any day or all of the days of the week, Monday to Friday and may also be worked on Saturday and Sunday subject to agreement between the employer and the majority of employees concerned. Such agreement may also be reached between the employer and an individual employee.

[63] Thus, the default position under the Manufacturing Award is that ordinary hours of work on any day must not exceed 8 hours and are to be worked on Monday to Friday. The Current Roster contemplates working more than 8 hours of ordinary time on some days, but for the reasons earlier set out, it is an arrangement made in accordance with the incorporated facilitative provisions of the 2015 Agreement, which continues to have force under the Agreement. Clause 17.2(d) of the Manufacturing Award provides for ordinary hours to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm and provides a mechanism for the spread of hours to be moved up to one hour forward or one hour back. The spread of hours has been altered by the agreement earlier discussed.

[64] Clause 17.2(e) of the Manufacturing Award provides that any change to regular rosters or hours of work is subject to the consultative provisions in "clause 42.2". The reference to "42.2" appears to be a typographical error which should refer to clause "42" which deals with consultation about changes to regular rosters or hours of work.

[65] Clause 17.5 is concerned with the methods of arranging ordinary working hours for day workers and by clause 17.5(a) provides that:

Subject to the employer's right to fix the daily hours of work for day workers from time to time within the spread of hours referred to in clause 17.2(d) and the employer's right to fix the commencing and finishing time of shifts from time to time, the arrangement of ordinary working hours must be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned. This does not preclude the employer reaching agreement with individual employees about how their working hours are to be arranged. Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause 41.2. [Note that reference to "41.2" appears to be a typographical error which should refer to clause "42" which deals with consultation about changes to regular rosters or hours of work.]

[66] Properly construed the reference to "the arrangement of ordinary working hours must be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned" must be understood as referring to an arrangement of ordinary working hours other than as they are arranged in the default position set out in clause 17.2. No agreement is necessary to arrange ordinary hours of work as set out in clause 17.2.

[67] Thus, the Manufacturing Award permits Visy to arrange ordinary hours to be worked continuously within the spread of hours, to fix daily hours of work within the spread of hours and the starting and finishing times of ordinary hours of work, subject to ordinary hours not exceeding 8 hours in any day, and being confined to Monday through Friday, without any agreement. Where hours are worked in accordance with a roster, any change to a regular roster can only happen after consultation as required by clause 42. Any change to hours of work must also be the subject of consultation.

[68] Where a change in the regular roster or ordinary hours of work involves moving tapered ends employees from the Current Roster to a roster that involves working ordinary hours as contemplated by the default provisions in clause 17.2, no agreement to the change is required. But consultation under clause 42 must first occur. Any change that involves change to the configuration of ordinary hours of work under the Current Roster that is not the default position must conform with the relevant facilitative provisions found in clause 17. But a change to the Current roster, which does not involve a change to the configuration of ordinary hours worked on each day, but merely to the days on which that work is to be rostered (Monday to Friday) involves only a change to the regular roster and not to ordinary hours of work, and so may be implemented once consultation as required by clause 42 has been undertaken.

[69] As clause 7.1 of the Manufacturing Award notes, the award contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or a section or sections of it. And that the specific award provisions establish both the standard award condition and the framework within which agreement can be reached as to how the particular provisions should be applied in practice.

[70] Thus, the facilitative provisions in clause 17 of the Manufacturing Award are relevant for a departure from the standard award condition (or as I have earlier described it - the default position). No recourse to any facilitative provision is required to revert from an arrangement implemented under a facilitative provision back to the standard award condition.

[71] I answer the questions posed as follows:

Question 1: Under the Agreement, is [Visy] entitled to change the tapered ends employees' roster without their majority agreement?

Answer: Yes, subject to complying with the consultation obligations in clause 42 of the Manufacturing Award operating as an incorporated term of the Agreement; and noting the limitations on its capacity to do so identified in the discussion above.

Answer: No. Mr Trimcevski's entitlement to overtime payments for the overtime worked in accordance with the Current Roster is derived from clause 32.2 of Manufacturing Award operating as an incorporated term of the Agreement. In the result Mr Trimcevski is entitled under the Agreement to be paid for 76 hours at his ordinary time rate, 3 hours at 150% of his ordinary hourly rate and 1 hour at 200% of his ordinary hourly rate when working the Current Roster.

Mr J Gardner and Mr B Terzic on behalf of the AMWU

[1] WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and the authorities referred to therein; see also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]- [130] and the authorities referred to therein (The analysis of the principles of construction set out therein were not disturbed on appeal: see King v Melbourne Vicentre Swimming Club Inc [2021 FCAFC 123, 308 IR 171 at [40]- [43])

[2] Noting that the current iteration of the Manufacturing Award is the Manufacturing and Associated Industries and Occupations Award 2020.

[4] Transcript 26 October 2021 at PN39-PN42

[5] See clause 7.4(b) of the Manufacturing Award

Printed by authority of the Commonwealth Government Printer

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v Visy Packaging Pty Ltd [2022] FWC 1800

At a glance

Court

Decision date

Source

Judgment (190 paragraphs)

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v Visy Packaging Pty Ltd [2022] FWC 1800 (20 July 2022)

Parties

Legislation Cited (1)