Consideration
37 In my view, the construction of the Award for which Griffin contends is the correct, or at least the preferable, one.
38 Each of the parties addresses the general principles that should be borne in mind when a court is asked to construe an industrial instrument, such as the Award in this case.
39 The applicants say the Award must not be interpreted in a vacuum, divorced from industrial realities.
40 The applicants also submit that the Court should note that the making of a modern award, such as the Award here and its provisions relating to overtime payments, relevantly occurs in the context of the requirements of the FW Act concerning overtime.
41 The applicants submit that case law and the terms of the FW Act recognise that the payment of work done outside of ordinary hours worked, as part of a work/wages bargain, constitutes "overtime".
42 The applicants say that the Award was made by the then Australian Industrial Relations Commission (AIRC) sitting as a seven member Full Bench, and published on 19 December 2008 with the title "Award Modernisation", pursuant to Pt 10A of the former Workplace Relations Act 1996 (Cth).
43 The applicants cite [154] and [155] from the Full Bench's determination.
44 The applicants also note that the first 122 modern awards commenced on 1 January 2010, coinciding with the introduction of the national workplace relations system brought into effect under the umbrella of the FW Act. Modern awards, together with 10 minimum NES, under the FW Act, made up the minimum safety net for national system employees.
45 The applicants note that modern awards are provided for by s 134 of the FW Act. The matters affected by them include that specified in s 134(1)(da), namely:
the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and ....
46 Additionally, the applicants note s 134(1)(f) provides for the object of the "likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden ...".
47 The applicants also draw attention to s 138:
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.
48 The applicants also note that under s 139(1) a modern award may include terms about overtime rates.
49 The applicants note that Ch 2 Pt 2 of the FW Act deals with the NES. Division 3 sets out maximum weekly hours. In s 62, the FW Act provides that an employer must not request or require an employee to work more than 38 hours for a full-time employee "unless the additional hours are reasonable". Section 62(3) sets out criteria for determining whether additional hours are reasonable or unreasonable, and matters which must be taken into account in that assessment. Of the 10 items cited, s 62(3)(d) refers to "whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours". Section 62(3)(g) is "the usual patterns of work in the industry, or the part of an industry for which the employee works".
50 The applicants note that s 63 of the FW Act states that modern awards and enterprise agreements can provide for "averaging" of hours of work. Section 63(1) provides that a modern award may, amongst other things, include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed 38 hours for a full-time employee. However, s 63(2) provides that the terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in s 63(1) if the excess hours are reasonable for the purposes of s 62(1). Under s 63(2) there is a note which reads as follows:
Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).
51 The applicants also draw attention to s 147 of the FW Act which provides that:
A modern award must include terms specifying, or providing for the determination of, the ordinary hours of work for each classification of employee covered by the award and each type of employment permitted by the award.
Note: An employee's ordinary hours of work are significant in determining the employee's entitlements under the National Employment Standards.
52 As a matter of history, the applicants note that when the Award first came into operation, maintenance employees' employment at Griffin in Collie was governed by enterprise-based agreements, not the Award. That situation continued until the decision to terminate the pre-existing 2012 agreement came into effect, from 14 August 2016. Until then, the Award was only indirectly relevant to maintenance employees in setting the benchmark for the "better off overall test" to apply to proposed enterprise bargaining agreements under the FW Act.
53 The applicants note that prior to the commencement of the Award, maintenance employees at Collie were covered by the Coal Mining Industry (Engineers) Award 1990 (1990 Award). The clauses of the 1990 Award that dealt with hours of work and overtime were cl 7 and cl 8, as follows:
7. HOURS
(1) As at the date this award came into force the hours of work, work rosters and conditions pertaining thereto applying to employees under this award, shall remain in force until varied by agreement in accordance with or permitted by the provisions of this award, or by arbitration.
(2) Except as otherwise provided under this Clause, the ordinary hours of work under this award shall be an average of 35 per week to be worked 7 hours per day, Monday to Friday.
(3) Notwithstanding the provisions of subclauses (1) and (2) of this clause, and Clause 9. - Shiftwork, and excluding only Christmas Day, Anzac Day and Good Friday by agreement between the Employer and the Union alternative ordinary working hours, working days and shift rosters may be negotiated to reflect any mutually acceptable working arrangement.
(4) Crib time not exceeding a half hour to be taken at a time mutually agreed between the employees and the Manager shall form part of the ordinary rostered hours of work. Where shifts of 4 hours or less are worked there shall be no entitlement to a crib.
8. OVERTIME
(1) All time worked in excess of, or in the case of Western Collieries in excess of or outside the ordinary working hours prescribed by this Award shall be paid for at the rate of time and one-half for the first three hours and double time thereafter.
An employee will not refuse unreasonably to work reasonable overtime when required by the employer after being advised of the nature of the overtime.
54 The Award then commenced on 1 January 2010.
55 Griffin, like the applicants, accepts that the principles of construing Awards are mostly settled. It submits, however, that case law about the meaning of "overtime" should not be imported into the Award and is apt to mislead; and primacy should be given to the text, construing it in textual, historical and legislative contexts.
56 Griffin questions the extent to which assistance may be gained from the perceived objects of the Award, the FW Act and relevant legislation.
57 Griffin submits that the Acts Interpretation Act 1901 (Cth) applies to the interpretation of a modern award, including the Award here, noting that the modern award is not a legislative instrument or a notifiable instrument: s 46(1)(a) of the Acts Interpretation Act.
58 Griffin notes s 46(1)(a), (b) and (c) of the Acts Interpretation Act provide:
(1) If a provision confers on a person (the authority) the power to make an instrument other than a legislative instrument, notifiable instrument or a rule of court, then:
(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and
(b) expressions used in any instrument so made have the same meaning as in the Act or instrument, as in force from time to time, that authorises the making of the instrument in which the expressions are used; and
(c) any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the authority.
59 While accepting that s 15AA of the Acts Interpretation Act, which Griffin submits does apply to the Award's construction, requires a construction or interpretation of words and phrases that promote the objects of legislation, Griffin says that the objects of the former Workplace Relations Act and the FW Act are intended to strike a balance between competing interests and even the phrase identified by the applicants, "fair minimum safety net", contains competing objectives. Similarly, Griffin submits, industrial awards also reflect a compromise between competing interests and should not be construed as being wholly for the benefit of one side or the other. In this regard, it refers to Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 426; [1995] HCA 24 (Brennan CJ, Dawson and Toohey JJ); Commonwealth Bank of Australia v Finance Sector Union of Australia (2002) 125 FCR 9 at [30]; [2002] FCAFC 193 (Gray, North and Gyles JJ).
60 While the Award here, Griffin points out, was not strictly a consent award, the majority of its provisions were agreed by the parties and it was also made having regard to the competing objects of the then Workplace Relations Act, including s 576A.
61 Thus, Griffin accepts that s 15AA of the Acts Interpretation Act does require an interpretation that would best achieve the purpose or objects of the Award to be preferred, and s 15AB allows consideration to be given to extrinsic material to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, taking into account its context, or to determine the meaning of a provision when the provision is ambiguous or obscure.
62 Griffin seeks to add the following historical and legislative context in which the Award was made, to that mentioned above and relied upon by the applicants.
63 It notes that s 576A of the Workplace Relations Act set out the objects of Pt 10A under which modern awards could be made, to the following effect:
(1) The object of this Part is to provide for the Commission to make modern awards in accordance with an award modernisation request.
(2) Modern awards:
(a) must be simple to understand and easy to apply, and must reduce the regulatory burden on business; and
(b) together with any legislated employment standards, must provide a fair minimum safety net of enforceable terms and conditions of employment for employees; and
(c) must be economically sustainable and promote flexible modern work practices and the efficient and productive performance of work; and
(d) must be in a form that is appropriate for a fair and productive workplace relations system that promotes collective enterprise bargaining but does not provide for statutory individual employment agreements; and
(e) must result in a certain, stable and sustainable modern award system for Australia.
64 Griffin says that of present relevance is that the objects of modern awards should be "simple to understand and easy to apply", "provide a fair minimum safety net", and "promote flexible modern work practices and the efficient and productive performance of work".
65 It notes that s 576J(1) of the Workplace Relations Act provided that a modern award could include terms about, amongst other things:
(c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;
(d) overtime rates;
66 Griffin notes that relevantly s 576J(2) provided:
A modern award may also include terms about any other matter specified in the award modernisation request to which the award relates.
67 Griffin also notes that s 576L provided:
A modern award may include terms about the matters referred to in subsection 576J(1) or (2) or section 576K only to the extent that the terms provide a fair minimum safety net.
68 Griffin then records the sequence by which the Award came to be made:
On 28 March 2008, the Minister for Employment and Workplace Relations issued an award modernisation request.
The request began by setting out the objects in s 576A(2) of the Workplace Relations Act. In its decision to make the Award (and 16 other priority modern awards) on 19 December 2008, the AIRC referred to the terms of the request and s 576A(2), which it said "specifie[d] important characteristics of modern awards".
The request said (at [5]) that "modern awards may also include provisions relating to the proposed National Employment Standards (proposed NES)" and (at [26]) that "the proposed NES [would] be finalised prior to 30 June 2008 and provided to the Commission for the purpose of conducting the award modernisation process".
On 16 June 2008, the Minister wrote to the President of the AIRC issuing a variation to the request (as well as a consolidated version) and providing what was described as a "final version" of the NES.
The version of the NES released on 16 June 2008, included the following s 12(6):
(6) A modern award may include provisions for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed:
(a) for a full-time employee - 38 hours; or
(b) for an employee other than a full-time employee - the lesser of:
(i) 38 hours; and
(ii) the employee's ordinary hours of work in a week.
Note: Hours in excess of the hours referred to in paragraph (6)(a) or (b) that are worked in a week in accordance with averaging provisions in a modern award will be treated as additional hours for the purpose of this section, but the averaging provisions will be relevant in determining whether the additional hours are reasonable (see paragraph (4)(i)).
[Emphasis added.]
The amended request included new paragraph 33 which stated, among other things:
33. The NES provides that particular types of provisions are able to be included in modern awards even though they might otherwise be inconsistent with the NES. The Commission may include provisions dealing with these issues in a modern award. The NES allows, but does not require, modern awards to deal with, among other things:
…
• averaging of hours of work;
69 Griffin observes that when the Award was ultimately made on 19 December 2008, the Full Bench in [2008] AIRCFB 1000 said it was appropriate to make modern awards by reference to the "final version" of the NES provided by the Minister.
70 The day before, on 18 December 2008, the Minister signed a further variation to the request. Paragraph 33 was amended to read, relevantly:
33. The NES provides that particular types of provisions are able to be included in modern awards even though they might otherwise be inconsistent with the NES. The Commission may include provisions dealing with these issues in a modern award. The NES allows, but does not require, modern awards to deal with, among other things include terms that:
…
• enable the averaging of hours of work over a specified period;
[Tracking added by Griffin.]
71 Those provisions of the NES are now found in Pt 2-2 of the FW Act. They include in Div 3 - Maximum weekly hours, ss 62-64.
72 Section 62(1), which (like the Division) is titled "Maximum weekly hours", provides that an employer must not request or require a full-time employee to work more than 38 hours "in a week" unless the additional hours are reasonable.
73 Section 62(3) sets out factors to be taken into account in determining whether additional hours are reasonable. They include:
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
74 Section 63 states:
Modern awards and enterprise agreements may provide for averaging of hours of work
(1) A modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed:
(a) for a full-time employee - 38 hours; or
(b) for an employee who is not a full-time employee - the lesser of:
(i) 38 hours; and
(ii) the employee's ordinary hours of work in a week.
(2) The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).
Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).
75 Griffin observes that s 63(1) and the note are in materially the same terms as s 12(6) and the note in the "final version" of the NES issued on 16 June 2008 (save that s 63(1) also provides for averaging terms to be included in enterprise agreements).
76 Section 64 of the FW Act states:
Averaging of hours of work for award/agreement free employees
(1) An employer and an award/agreement free employee may agree in writing to an averaging arrangement under which hours of work over a specified period of not more than 26 weeks are averaged. The average weekly hours over the specified period must not exceed:
(a) for a full-time employee - 38 hours; or
(b) for an employee who is not a full-time employee - the lesser of:
(i) 38 hours; and
(ii) the employee's ordinary hours of work in a week.
(2) The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).
Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with an agreed averaging arrangement (whether the arrangement complies with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging arrangement will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).
77 Griffin submits and I accept that from this legislative history it can be seen that the NES in Div 3 of Pt 2-2 of the FW Act is concerned with the maximum weekly hours of work and the averaging of weekly hours of work, with the average weekly hours over a specified period not to exceed 38 for a full-time employee. Section 63 does not limit the period over which hours may be averaged under an award. Section 63(1) requires the Award to specify that period.
78 By contrast, s 64 provides that hours may be averaged over a period of up to 26 weeks. I also accept the NES do not contain provisions specifying, limiting or otherwise regulating daily hours of work.
79 The purpose and effect of s 63 of the FW Act may also be seen from the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) introduced into the House of Representatives on 25 November 2008:
252. Clause 63 permits a modern award or enterprise agreement to include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed 38 hours (for a full-time employee), or the lesser of 38 hours or the employee's ordinary hours of work in a week (for an employee other than a full-time employee). Hours worked in a week in excess of this number of hours are additional hours and must not be unreasonable. The fact that additional hours are worked in accordance with an averaging arrangement does not necessarily mean that those hours are reasonable. Rather, the averaging arrangement is one factor to be considered in the particular circumstances.
253. The clause does not restrict the period over which the hours can be averaged under a modern award or enterprise agreement.
80 The Explanatory Memorandum (immediately after [257]) gave the following illustrative example:
Averaging arrangements and reasonable additional hours
The modern award regulating Alex's employment includes averaging arrangements in relation to hours of work so that full-time employees would ordinarily work 152 hours over four weeks (an average of 38 hours per week). Over a four week period, Alex's work pattern was as follows:
Week 1 - worked 21 hours
Week 2 - worked 60 hours
Week 3 - worked 38 hours
Week 4 - worked 33 hours
The averaging arrangement would be relevant in determining the reasonableness of the additional 22 hours that Alex was required to work in week 2. Other factors such as Alex's "family responsibilities", his health and safety and the notice he was given of having to work those "additional 22 hours" would also be relevant.
81 I consider that cl 21.1 of the Award is an averaging term within the meaning of s 63 of the FW Act and should be construed accordingly.
82 Further, by reason of s 46(1)(b) of the Acts Interpretation Act, the words "average" and "averaged" in cl 21.1 of the Award should have the same meaning as the word "average" and the cognate word "averaging" in s 63 of the FW Act.
83 Alternatively, the words "average" and "averaged" in cl 21.1 of the Award should have the same meaning as the word "average" and the cognate word "averaging" in s 12(6) of the version of the NES which the Minister provided to the AIRC on 16 June 2008 (and which is relevantly in the same terms as s 63(1) of the FW Act) and by reference to which the AIRC made the modern awards.
84 I consider the purpose of the averaging provisions provided for in the NES is to allow more or less than the maximum number of weekly hours to be worked in any given week, provided the average number of weekly hours over a specified period does not exceed the maximum number of weekly hours.
85 Griffin observes, and I accept, that nowhere in the extrinsic materials pertaining to the NES is there any suggestion that the averaging provisions have any other purpose or are intended to regulate daily hours of work or shift lengths.
86 As Griffin observes, it may also be noted that the averaging provisions in the NES followed averaging provisions in s 226 of the former Workplace Relations Act. Under s 226 of the Workplace Relations Act an employee could not be required or requested by an employer to work more than 38 hours per week, or, by agreement, more than an average of 38 hours per week "to be averaged over a specified averaging period that is no longer than 12 months", and reasonable additional hours. Again, the purpose of the provision was to limit maximum weekly hours of work and to allow for those hours to be averaged over a specified period.
87 This legislative background is relevant to the construction of the relevant provisions of the Award.
88 Griffin also notes that, for the purposes of construing the Award, the Award replaced a number of pre-reform awards and Notional Agreements Preserving State Awards (NAPSAs). In its written submissions, Griffin sets out how each of those awards and NAPSAs provided for averaging of the ordinary weekly hours of work, albeit in different terms.
89 Griffin submits that while each of the awards described the ordinary hours of work as an average of 35 hours per work, different or no averaging periods were prescribed.
90 I accept that this regulatory background is also relevant to the construction question and supports the construction I have adopted.
91 So far as the making of the Award here was concerned, Griffin notes that the major participants to the Award substantially agreed on the terms of the draft award. On 31 July 2008, the Coal Mining Industry Employer Group (CMIEG) submitted its draft award to the AIRC which, in cl 18.1.1, stated:
The ordinary hours of work will be an average of 35 hours per week. Those hours will be averaged over the roster cycle unless another period is agreed between the employer and the individual employee. [Emphasis added.]
92 In written submissions, also filed on 31 July 2008, the CMIEG said (at [4]) that in preparing the employer draft modern award the employer group had generally used as a basis for the modern award the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 (P&E Award) and the Coal Mining Industry (Staff) Award 2004 (Staff Award).
93 In relation to what would become cl 21.1 of the Award, the CMIEG said (on p 9):
Draft clause 18.1 deals with averaging periods for ordinary hours. It adopts and applies the current provisions of the Staff Award (clause 21.1.3) to all employees so that current award flexibilities are maintained and extended where it is appropriate to do so. No reduction of employee entitlements arises consequent upon the implementation of the employer's proposal. NES Section 12(6) provides that modern awards may include provisions for averaging of hours over a specified period.
94 The CMIEG submissions included further commentary on the hours, rostering and overtime provisions in the proposed award. As Griffin submits, it does not appear that the Construction, Forestry, Mining and Energy Union (CFMEU) (as it then was) demurred from these submissions, presumably because the clauses were largely agreed.
95 On 1 August 2008, the CFMEU submitted its draft award. Clause 17.1.1 of the CFMEU draft stated:
The ordinary hours of work will be an average of 35 hours per week. Those hours will be averaged over the roster cycle.
96 Griffin submits that the only difference between the parties on this clause was the additional words which the CMIEG sought to include and which are emphasised in [91] above.
97 In its written submissions, dated 1 August 2008, the CFMEU said (at pp 3-4):
The major industry award in the coal mining industry is The Coal Mining Industry (Production and Engineering) Consolidated Award 1997 (The P&E Award). The parties have taken the approach that the P&E Award forms the basis of the modern industry award.
98 The CFMEU's submissions traced the background of the P&E Award noting that it had been simplified following lengthy contested proceedings commencing in 1999 and finishing in 2001. Copies of the relevant decisions were annexed to the CFMEU's submissions and included (as Annexure 9) print PR931940, a decision of Bacon Commr given on 8 October 2003. In that decision Bacon Commr said:
[134] . . . there will only be two types of 'hours' that can be worked. They are 'ordinary' hours and 'overtime' hours. Whilst the award may provide various penalties payable for work on different days, etc. (eg Saturdays and Sundays) none of that is relevant to the determination of whether hours are 'ordinary' or 'overtime'.
[135] The award hours clause will ultimately require that the ordinary hours of work shall average 35 per week. That is for each week in a roster cycle there must be included in the roster 35 ordinary hours. There is no requirement for each individual week in the roster to contain 35 ordinary hours unless of course the roster cycle is one week. A roster with a two, three, four or seven week cycle must contain somewhere in the roster 70, 105, 140 or 245 'ordinary' hours respectively. Such ordinary hours can fall anywhere in the roster (ie there need not be 35 ordinary hours in each individual week of the roster). It is the Commission's view that the ordinary hours in any roster need to be identified by the employer (or where such rosters are by agreement the ordinary hours need to be identified by agreement). [Emphasis added.]
99 I accept that it appears from this extract that it was the intention of the AIRC in simplifying the predecessor P&E Award, that ordinary hours could fall anywhere in the roster and that, save where rosters were to be determined by agreement, the employer would identify the ordinary hours in the roster. As stated by the CFMEU, the parties used the P&E Award as the basis for the proposed Award.
100 On 8 August 2008, the AIRC (by Lawler VP) heard oral submissions in relation to the proposed Award. The CFMEU was represented by Ms Gray, and the CMIEG by Mr Morris. On the question of the averaging clause, there was the following exchange:
PN465
THE VICE PRESIDENT: Yes. Now that takes us to 18 or 18 of the employer, 17 of the union.
PN466
MR MORRIS: Correct. There we think consistent with a modern award that is facilitative. It ought to be open to an employee to agree on an average if that is more than the cycle of that particular roster or indeed other than the cycle of a particular roster.
PN467
THE VICE PRESIDENT: Ms Gray you say they should have to bargain for that?
PN468
MS GRAY: Well we're saying that the roster cycle might be 12 weeks in length Your Honour and we're saying that that's sufficient time for an averaging of ordinary hours to ensure that there's no disadvantage to an employee.
PN469
MR MORRIS: That takes us to - - -
PN470
MS GRAY: Also to say Your Honour that to see that it may be also a back doorway in to annualised salary arrangements you could average the ordinary hours over 12 months for example and - - -
PN471
MR MORRIS: The next one is our 18.4 . . .
101 When the AIRC issued its exposure draft award on 12 September 2008, cl 17.1 was in the following terms (as proposed by the CFMEU and as now appears in the Award):
The ordinary hours of work will be an average of 35 hours per week. Those hours will be averaged over the roster cycle.
102 In its submissions dated 10 October 2008, responding to the exposure draft award, the CMIEG said:
Clause 17 - Hours of Work
26. The employer group notes that the Full Bench has so far chosen not to include in the clause these words -
… unless another period is agreed between the employer and individual employee
as sought by the employers.
27. The employer group notes, however, that clause 7.1 will cover this matter. It would be helpful if the Full Bench were able to make a confirmatory comment to this effect.
103 When the AIRC issued its decision on 17 December 2008 making the Award (and the other priority modern awards), the AIRC said in relation to the averaging clause:
Ordinary hours of work
[163] We have not included a note sought by the CMIEG to the effect that the award flexibility clause would authorise the employer and an individual employee to agree to averaging of hours over a period other than the relevant roster cycle. Such a note is unnecessary. On any view an agreement of that sort can be made under the award flexibility clause.
104 When the AIRC made the Award in December 2008, the averaging clause was cl 20.1. It is now cl 21.1.
105 Griffin notes that in the same decision by which the AIRC determined the averaging clause in the Award, it made similar averaging clauses in two other modern awards.
106 In my view, it is clear from all the above that:
(1) cl 21.1 of the Award is an averaging clause as allowed for in the NES; and
(4) the words "Those hours will be averaged over the roster cycle" were included to define the period over which hours may be averaged - in circumstances where the NES did not prescribe the period but allowed for awards to include terms providing for the averaging of hours "over a specified period". The awards and NAPSAs being replaced prescribed different averaging periods or no period at all and the employers were seeking to allow for averaging over a longer or different period.
107 In my view, there is little or no support anywhere in the extrinsic materials for the proposition that the words, "Those hours will be averaged over the roster cycle" were also intended to require ordinary hours to be apportioned equally across each shift in the roster cycle.
108 As Griffin submits, the imposition, by a side wind, of a requirement that the same number of ordinary hours be worked on each shift of the roster cycle would introduce extraordinary rigidity into an award system which has as one of its objects the "promot[ion of] flexible modern work practices and the efficient and productive performance of work", the more so when it is considered that averaging provisions in other awards provide for hours to be averaged over significantly longer periods - for example 16 weeks in the case of the Rail Industry Award 2010 and 26 weeks in the case of the Mining Industry Award 2010 which were made by the AIRC at the same time. Such provisions were intended to allow, not curtail, flexibility.
109 The applicants' approach of spreading the ordinary hours across each shift in a roster would likely have the effect of preventing rosters from including standalone overtime shifts. Such shifts have been a feature of some types of roster in the coal industry and it must be considered unlikely that the AIRC in making the Award intended to preclude them. See CFMEU v Mackenzie River Bulkhaul Pty Ltd PR916549, AIRC, 9 April 2002, Bacon Commr.
110 In my view, when one takes into account the full legislative history and sequence of statutory provisions under the former and present legislation pertaining to the making of modern awards and, in particular, the Award in this case, the final submission made by Griffin, that when provisions of the Award are read together and given their ordinary meaning, the Award allows an employer to arrange the rostered hours of work and to roster shifts of up to 10 ordinary hours, should be accepted.
111 In particular, there is nothing in the definitions of the expressions "roster", "roster cycle", "rostered hours", "rostered overtime", "seven day roster employee", or "six day roster employee" in cl 3.1 of the Award, and set out above, to suggest a contrary construction.
112 Rather, those definitions support an inference that:
(1) employees may be "rostered" to work shifts and may be "required" to work reasonable overtime as part of their roster; and
(2) a roster is an "arrangement" of ordinary hours of work and rostered overtime; thus
(3) it is the employer who sets the roster and who, in doing so, may "arrange" the ordinary hours of work and overtime in a roster.
113 As to cl 17.1, set out above, concerning overtime, I accept it is a common provision in industrial awards and means that overtime payments are to be calculated on the basis that each day stands alone. Thus, as Griffin says, for example, in the case of the Award, if three hours' overtime are worked on a Monday and three hours' overtime are worked on a Tuesday, the first three hours on each day are paid at time and a half, that is, cl 17.2(a) (set out above) is to be read as prescribing payment at time and a half for the first three hours on each of Monday to Friday (rather than as prescribing payment at time and a half for the first three hours of overtime in the week and at double time for all hours after that). While the applicants, in their written submissions, say that Griffin's construction does not sit happily with cl 17.1 it is not clear to me that it does not. On the contrary, as Griffin submits, to the extent that cl 17.1 has anything to say on the point, it does not sit comfortably with the applicants' approach which is to aggregate all the overtime in a roster cycle and allocate a portion of it to each shift. Griffin's approach treats each shift separately.
114 Paragraphs 17.2(a) and (b) effectively define overtime to mean "all time worked in excess of or outside the ordinary hours of any shift" [Emphasis added.].
115 Overtime is not defined by reference to the number of hours worked in a week or roster cycle.
116 The Award does not, for example, define overtime to mean all time worked in excess of an average of 35 hours per week over the roster cycle. Nor does the Award impose overtime payments based on the number of hours worked in a week or roster cycle.
117 Overtime payments are imposed by reference to whether the "time worked [is] in excess of or outside the ordinary hours of any shift". The focus is on each shift.
118 Clause 17.2 is also significant because it provides that overtime on a Saturday shall be paid at time and a half for the first three hours and double time thereafter and that overtime on a Sunday shall be paid at double time.
119 Clause 17.3 leaves no doubt that an employee may be required to work overtime on a Saturday or Sunday, including as a standalone shift. It provides some additional protection for employees in that circumstance, by requiring payment for at least three hours, but otherwise it reinforces that such overtime is to be paid at the rates prescribed in the Award (the appropriate rate).
120 It is clear from cl 17.2 and cl 17.3 that the AIRC in making the Award made special provision for overtime worked on Saturdays and Sundays. I accept Griffin's submission that the AIRC must be taken to have regarded the rates prescribed as fair (fair having regard to the interests of both employers and employees). There is nothing anomalous or unfair about an employer rostering overtime on a Saturday or Sunday and paying those rates.
121 Returning to cl 21.1 (Ordinary hours of work), which provides:
The ordinary hours of work will be an average of 35 hours per week. Those hours will be averaged over the roster cycle.
122 I accept Griffin's submission that, in light of the full context, the clause is not ambiguous. Ordinary hours are to average 35 per week over the roster cycle (which in this case is three weeks). That prescription is satisfied if 105 ordinary hours are worked over three weeks. There is no requirement for any particular number of ordinary hours, or for the same number of ordinary hours, to be worked each shift or each week. Hours are to be averaged over the roster cycle. They are not required to be averaged over each week or shift in the roster cycle.
123 The ordinary meaning of the text is consistent with the legislative and historical context discussed above. Those extrinsic materials confirm the ordinary meaning. Alternatively, if there is ambiguity, the extrinsic materials support Griffin's construction.
124 Employees may therefore be rostered to work reasonable additional hours as an integral part of their roster (as per the definitions of "roster", "rostered hours" and "rostered overtime") but may also be required to work reasonable additional hours in addition to their rostered hours (effectively, unrostered overtime), as provided for by cl 17.4.
125 Clause 23, in my view, indicates that the employer can determine the type of rosters to be worked (that is, the type of arrangement of ordinary hours and rostered overtime to be worked), the shift length to be worked (as long as ordinary hours do not exceed 10), the start and finish times of shifts up to 10 ordinary hours, and may vary the number and spread of ordinary shifts.
126 Griffin is therefore entitled to roster shifts of 10 ordinary hours and to determine the number of ordinary shifts, provided the number of ordinary hours average 35 per week over the roster cycle. There is no requirement in the Award, implicit or express, for Griffin to roster employees for only 7.5 ordinary hours on each shift. That is contrary to the express stipulation in the Award that the employer may determine shift lengths of up to 10 ordinary hours, including start and finish times, and may vary the number and spread of ordinary shifts. Nor is there any requirement in the Award, implicit or express, for Griffin to roster ordinary hours on each shift in the roster cycle. There is no reason why Griffin cannot roster one or more overtime shifts as part of the employee's roster. As mentioned, such shifts have been a feature of some types of roster in the coal industry and it is unlikely that the AIRC in making the Award intended to preclude them.
127 In my view, the words "will be an average of 35 hours per week" and "will be averaged over the roster cycle" in cl 21.1, are intended to allow the number of ordinary hours in any week to be more or less than 35, provided the number of ordinary hours per week averaged over the roster cycle is 35, that is, provided the total number of ordinary hours in the roster cycle divided by the number of weeks in the roster cycle is 35. That appears both from the ordinary meaning of the words and from their textual, historical and legislative context set out above.
128 I consider that to adopt the applicants' construction of the Award would be to give the words in cl 21 a meaning they do not bear and, in effect, to read words into the Award that are not to be found there.
129 There is, in the result, force in Griffin's contention that the applicants' real complaint in this proceeding is that it is not fair for Griffin to roster overtime on a Saturday or Sunday because the employees will receive less in total penalties than if those overtime hours were rostered on a weekday, and that the Award should therefore somehow be read as not permitting that outcome.
130 As to that, I accept that the Award is not to be construed as wholly for the benefit of employees or employers. The obligations which it imposes are various and intended to strike a balance between the interests of employees and employers. That was reflected in the objects in s 576A of the former Workplace Relations Act under which the Award was made and which required that modern awards "be simple to understand and easy to apply", "provide a fair minimum safety net" and "promote flexible modern work practices and the efficient and productive performance of work". It continues to be reflected in the "modern awards objective" in s 134 of the FW Act.
131 Also, as Madgwick J said in the frequently quoted statement in Kucks v CSR Limited [1996] 66 IR 182; [1996] IRCA 141:
… the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
132 The AIRC in making the modern award, determined that work on Saturday and Sunday would be paid at no more than double time whether it was ordinary hours or overtime. Griffin submits, and I accept, that the applicants should not be permitted to read into the Award a restriction on an employer's ability to roster overtime on a Saturday or Sunday simply because that would be more lucrative for employees.
133 Rather, if a party considers a modern award is not achieving the modern awards objective, then its remedy would appear to lie in the Fair Work Commission: see ss 157(1), 157(3), 158 and 160 of the FW Act; also s 156.