s.739 - Application to deal with a dispute

Dispute under enterprise agreement - entitlement to Heavy Rigging Allowance - operation of Night Shift Stand Down provisions - matter dealt with on the papers - provisional views expressed - no opposition to provisional views - decision finalised

• [1] Clinton Neville is employed by Freo Group Pty Ltd (Freo Group) and commenced a secondment in May 2025 to perform the role of Crane Operator - Level 3, 0 to 130t at Freo Group's Newman Branch in the Pilbara region of Western Australia. The Freo Group Pty Ltd North West Agreement 2020 (Agreement) applies to Mr Neville's work for Freo Group in relation to the secondment. A dispute has arisen between Mr Neville and Freo Group in relation to the operation of the Heavy Rigging Allowance condition contained in Schedule 3(2) of the Agreement and the Night Shift Stand Down conditions in clause 27.8 to 27.11 of the Agreement. Mr Neville is a member of the Construction, Forestry and Maritime Employees Union (CFMEU) and has been represented by the CFMEU in relation to the dispute. The parties have not been able to negotiate a resolution to the dispute and agree that the Commission has jurisdiction to arbitrate the dispute in accordance with s.739 of the Fair Work Act 2009 (FW Act) and the dispute resolution procedure in clause 10 of the Agreement.

• [2] The parties filed evidence and submissions in accordance with my directions and then agreed to the dispute being determined on the papers.[1]

• [3] With the benefit of hindsight, I should not have vacated the hearing date and indicated the dispute would be determined on the papers. The resolution of this dispute is complicated. It would have been of assistance to have the opportunity to raise issues with the parties during a hearing. In addition, I have arrived at a position in relation to the Night Shift Stand Down provision that was not argued by the parties. As a result, I decided to issue a provisional decision and to provide the parties with an opportunity to make submissions about the provisional decision.

• [4] Mr Neville and Freo Group did not file any submissions in opposition to the provisional decision. I am now finalising the decision in the following terms.

• [5] In Skene v Workpac Pty Ltd[2], the Full Court of the Federal Court of Australia summarised the principles for interpreting an enterprise agreement as follows:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation "... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...": Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J)."

• [6] The Agreement contains minimum base rates of pay in Schedule 2 to apply from commencement. The minimum base rates in Schedule 2 have seemingly been increased by the following percentages based on movements in the West Australian CPI as required by clause 15.4 of the Agreement:

• 16 March 2022: 5.7%
• 16 March 2023: 8.3%
• 16 March 2024: 3.6%
• 16 March 2025: 2.9%

• [7] Mr Neville's secondment letter identifies an hourly rate of $44.95. That figure reflects the Level 3, 0 to 130t Crane Operator rate of $36.85 in Schedule 2 of the Agreement as increased by the percentages identified above.

• [8] There are five levels of Crane Operator classifications in Schedule 2 of the Agreement and then there are different minimum rates for each level which increase as the crane lifting capacities increase. Schedule 1 of the Agreement then has Short Term Variance of Duties provisions which provide that Crane Operators receive the relevant higher rate of pay when they are operating a crane with a higher lifting capacity than what they normally operate. The provisions also state that Crane Operators retain their regular rate when they operate a crane with a lower lifting capacity. These provisions mean that if Mr Neville is directed to operate a crane with a lifting capacity above 250t and below 350t, his minimum rate of pay would increase from the normal Level 3, 0 to 130t rate of $44.95 to the Level 3, 0 to 350t rate of $54.72. If Mr Neville is directed to operate a crane with a lower lifting capacity of 0 to 25t, he would be paid his higher Level 3, 0 to 130t rate.

• [9] There are five levels of Rigger/Dogger rates in Schedule 2 of the Agreement. These rates do not increase based on the lifting capacity of the crane that employees are performing Rigger/Dogger duties on. However, there is a Heavy Rigging Allowance prescribed in Schedule 3(2) of the Agreement which states:

"The Employer shall pay a Heavy Rigging Allowance of $2.00 flat per hour worked, where an Employee is performing rigging duties for a crane of 250t or above."

• [10] Although Mr Neville is engaged as a Crane Operator, he performs rigging duties on an ad hoc basis. Mr Neville performed rigging duties on a crane with a lifting capacity of 250t or above during the period of 8 to 10 August 2025.

• [11] The matter in dispute between the parties is whether Mr Neville should have received the Heavy Rigging Allowance of $2.00 per hour in addition to his normal rate of pay of $44.95 when he performed rigging duties on cranes with a lifting capacity of 250t or above from 8 to 10 August 2025.

• [12] To provide context, a Level 3 Rigger/Dogger performing rigging duties on a crane with a lifting capacity of 250t or above from 8 to 10 August 2025 would have received a base rate of pay of $41.54 plus the Heavy Rigging Allowance of $2.00 per hour making a total rate of $43.54 per hour. That combined rate is $1.41 per hour lower than Mr Neville's normal Crane Operator Level 3, 0 to 130t rate of $44.95. However, a Level 4 Rigger/Dogger would have received a higher combined rate of $45.30 ($43.30 + $2.00), and a Level 5 Rigger/Dogger would have received a higher combined rate of $47.23 ($45.23 + $2.00). It is not clear which Rigger/Dogger level Mr Neville would fall within, given he has been classified as a Crane Operator.

• [13] As referred to above, the Agreement specifically addresses what occurs when a Crane Operator like Mr Neville operates a crane with a higher or lower lifting capacity than what they normally operate. These provisions operate in the same way as higher/lower duties provisions in many industrial instruments to the effect that the employee gets the higher applicable rate for higher duties but is not paid a lower rate when they are directed to perform duties at a lower classification level.[3]

• [14] Unfortunately, the Agreement does not expressly deal with what will occur when a Crane Operator performs rigging or dogging work. There would be merit in the parties attempting to clarify this issue during the current bargaining process for a replacement agreement.

• [15] Mr Neville argues that there are no words of limitation in Schedule 3(2) which indicate an employee classified as a Crane Operator is not entitled to the Heavy Rigging Allowance when they perform rigging work on a crane with a lifting capacity of 250t or above.

• [16] Freo Group argues that the Agreement must be read as whole and that the Heavy Rigging Allowance is not payable to employees classified as a Crane Operator when the structure of the Agreement and particularly the operation of clauses 1, 3, and 15 and Schedules 1 and 2 is considered. Freo Group also points out that a summary document provided to employees in the access period for the Agreement specifically stated that the Heavy Rigging Allowance only applies to riggers.

• [17] I consider the words used in the Agreement favour the view that the Heavy Rigging Allowance is payable to any employee who performs rigging work on a crane with a lifting capacity of 250t or above. There is no indication from the words used in Schedule 3(2) that the Heavy Rigging Allowance is not payable to Crane Operators, and it would obviously have been quite easy to specify this type of limitation in the Agreement. I do not consider Freo Group's reference to the structure of the Agreement and specifically to clauses 1, 3, and 15 and Schedules 1 and 2 to be overly persuasive. I cannot identify any words in these provisions that indicate only an employee classified as a Rigger/Dogger can receive the Heavy Rigging Allowance.

• [18] I also consider it would be an odd outcome for an employee that is classified as a Level 5 Rigger/Dogger to be entitled to be paid the Heavy Rigging Allowance even though their base rate of $45.23 is higher than Mr Neville's base rate of $44.95 simply because they are classified as a Rigger/Dogger employee, rather than a Crane Operator. The payment of a flat $2.00 per hour Heavy Rigger Allowance for all employees without regard to their substantive classification level suggests it is intended to be compensation for any employee that is directed to perform the relevant heavy rigging work. It does not appear that the Agreement intends to prescribe one specific rate of pay as the appropriate compensation for an employee performing heavy rigging work. The intent appears to be to compensate employees for this work at their classification rate plus an allowance of $2.00 per hour. I consider this is consistent with Mr Neville's argument that the allowance is payable to any employee who performs heavy rigging work.

• [19] The wording used in the summary document provided to employees during the access period for the Agreement lends support to Freo Group's position that the Heavy Rigging Allowance is only payable to employees classified as a Rigger/Dogger. The question is whether this extrinsic material can be relied upon to read a limitation into the Agreement that could have easily been included in the words used in Schedule 3(2) but has not been included. I do not accept that the extrinsic material can be relied upon in this way. The Full Bench in Berri[4] confirmed that extrinsic material should not be used to rewrite an agreement. I consider interpreting the Agreement to include a limitation to the effect that a Crane Operator cannot receive the Heavy Rigging Allowance would involve impermissibly rewriting the Agreement. I also consider it is conceivable that the summary document was clarifying that where a crane with a lifting capacity of 250t or more is being operated by a team, it is only the employees performing rigging work that receive the additional allowance, and not the employees operating the crane.

• [20] For these reasons, I determine that the Heavy Rigging Allowance is payable to any employee who performs rigging duties on a crane with a lifting capacity of 250t or above.

• [21] I determine Mr Neville should have been paid the Heavy Rigging Allowance when he performed rigging duties on a crane with a lifting capacity of 250t or above from 8 to 10 August 2025.

• [22] Mr Neville worked four consecutive day shifts from 7 to 10 August 2025 and then four consecutive night shifts from Monday 11 August 2025 to Thursday 14 August 2025. Mr Neville had previously been approved to take a rostered day off (RDO) on Friday 15 August 2025. Mr Neville departed the site on a scheduled flight at 8:25am on Friday 15 August 2025 immediately after finishing his night shift.

• [23] The matter in dispute between the parties is whether Mr Neville was entitled to receive a Night Shift Stand Down Payment equivalent to eight hours' pay on 15 August 2025.

• [24] The Night Shift Stand Down clauses in the Agreement state:

"27.8 A stand down period is applicable after the completion of rostered night shifts provided that:

27.8.1 The last night shift finished between and including Monday to Friday;

27.8.2 The Employee has not achieved a minimum 40 Ordinary Hours of Work (inclusive of RDO accrual) for the week (8 hours per day, Monday - Friday) because of working a night shift; and

27.10 Where, because of the stand down, an employee commences work after their rostered start time, they will be paid at their rate of pay for the time between when they were rostered to commence work and the time, they actually start work.

27.11 It will not occur more than once per shift cycle (cycle refers to period commencing day shift roster, changing to Night shift roster and returning to day shift)."

• [25] Mr Neville argues he meets each of the requirements in clause 27.8 of the Agreement and was entitled to an eight-hour stand down payment on 15 August 2025.

• [26] Freo Group argues that an employee is only entitled to a Night Shift Stand Down payment under clause 27.10 where they are rostered to work after completing night shifts and, because of the stand down requirement, they start work after their rostered start time.

• [27] The parties both accept that Mr Neville was not rostered to work on 15 August 2025.[5] I find this position somewhat confusing. My understanding is that Mr Neville was initially rostered to work on 15 August 2025 but requested and was granted approval from Freo Group to take 15 August 2025 as an RDO. That seems to me to be a different situation to a day that was never going to be a working day for Mr Neville. Assuming Mr Neville was not scheduled to work from 16 to 25 August 2025, Mr Neville could not ordinarily take a paid RDO for those days because they were not rostered working days.

• [28] The fact that an RDO can only be taken on what would have been a rostered working day is reinforced by the Taking of RDO provisions in clause 24.4 to 24.9 of the Agreement. Clause 24.6 refers to an employee taking RDOs at times agreed with the employer and requiring the employee to give a week of notice, or less than one week "subject to operational requirements." The reference to "operational requirements" must be understood as a reference to the impact of the employee taking the RDO not being present at work when they were otherwise rostered to work. Clause 24.7 then refers to the employer being able to direct an employee to take an RDO where there are low levels of work. This clause is clearly directed at days where the employee is working as rostered, but the work levels are low. Clause 24.9 then allows a FIFO employee to request to take one accumulated RDO per R & R period. That is, to take one RDO during an R & R period when the employee is not rostered to work. The provision presents as an exception to the ordinary course where an employee cannot take an RDO on a day that they are not rostered to work.

• [29] It is also relevant that clause 24.10 of the Agreement contains a separate sub-clause directed at the cashing out of RDOs. The cashing out of an RDO results in an employee receiving a payment that is not linked to the taking of a paid day off on a specific day that the employee would otherwise have been required to work. The cashing out of an RDO differs from the ordinary course whereby accrued RDO hours are used by an employee so they can have a paid day off on a specific day that they ordinarily would have worked.

• [30] The position described above for RDOs is analogous to the taking of personal/carer's leave. An employee can only take paid personal/carer's leave on a day they were rostered to work. I consider the same applies for an RDO, subject to the cashing out provisions and the entitlement for FIFO workers to take one RDO during an R & R period.

• [31] For these reasons, I consider that 15 August 2025 was a rostered working day for Mr Neville. However, it was also a day whereby Mr Neville and Freo Group had agreed that Mr Neville would not attend his rostered shift and would still be paid through the taking of an accrued RDO.

• [32] I consider the finding that 15 August 2025 was a rostered working day for Mr Neville has consequences for the application of the Night Shift Stand Down provisions.

• [33] I consider the correct approach under the Agreement was to:

1. Apply a stand down period of eight hours from when Mr Neville finished his night shift on 15 August 2025.

1. Identify Mr Neville's original rostered hours for 15 August 2025 i.e. what hours he would have been rostered to work if he had not applied for an RDO.

1. Pay Mr Neville at his normal rate of pay for any of his regular rostered hours that fell within the eight-hour stand down period.

1. Make a deduction from Mr Neville's accrued RDO balance reflecting any of his regular rostered hours for 15 August 2025 that have not already been paid through the stand down provisions.

For example, if Mr Neville's night shift finished at 6:00am on 15 August 2025 and he normally would have worked a day shift on 15 August 2025 from 6:00am to 6:00pm, Mr Neville would be paid from 6:00am to 2:00pm under the stand down provision in clause 27.10 and would be paid from 2:00pm to 6:00pm using four of his accrued RDO hours.

• [34] This approach means Mr Neville is not required to use accrued RDO hours to cover his normal rostered hours falling within the stand down period on 15 August 2025, in circumstances whereby he is separately entitled to payment for those hours under clause 27.10. The position is akin to a situation whereby Mr Neville had approved annual leave to commence on 15 August 2025. Mr Neville would not be required to use accrued annual leave to cover rostered hours that would have fallen within the eight-hour Night Shift Stand Down period. Any rostered hours falling within the stand down period are appropriately compensated by clause 27.10, rather than an employee's accrued leave or RDO entitlements. I also note Mr Neville did not know that an eight-hour Night Shift Stand Down period would be triggered on 14 July 2025 when be booked an RDO for 15 August 2025. Mr Neville would presumably not have elected to use accrued RDO hours to cover rostered hours that he was already entitled to be paid for under clause 27.10.

• [35] I am not convinced by Mr Neville's argument that there is a general entitlement to eight hours of pay if a Night Shift Stand Down period is applicable under clause 27.8. I agree with Freo Group's submission that the Agreement requires an employee to not work for eight hours after working a night shift if the requirements in clause 27.8 are met, and that clause 27.8 and clause 27.9 do not provide an entitlement to be paid for that period.

• [36] The reference in clause 27.8.2 to an employee having not achieved 40 ordinary hours for the week does lend support to Mr Neville's argument that the provisions are directed at ensuring an employee does not lose income for the week due to working night shifts. However, I do not consider this reference in the eligibility part of the clause is sufficient to trigger a payment obligation.

• [37] I consider clause 27.8 prescribes eligibility for the stand down, clause 27.9 prescribes the duration of the stand down, and clause 27.10 provides for employees to be paid if they had rostered hours during the stand down period.

• [38] I determine that the proper approach to the application of the Night Shift Stand Down provisions is as outlined above.

• [39] The outcome of my determination for Mr Neville will depend on what hours Mr Neville would have been rostered to work if he had not applied for an RDO on 15 August 2025.

[1] Mr Neville filed witness statements dated 27 October 2025 and 14 November 2024 and written submissions on the same dates. Freo Group filed a witness statement from Chris Hamilton (Operations Manager) dated 10 November 2025 and written submissions on the same date.

[2] [2018] FCAFC 131; (2018) 280 IR 191 at [197].

[3] Many industrial instruments contain a higher duties provision that applies for either the full shift or the time worked in the higher role but do not allow for an employee's rate to be reduced if they are directed to perform lower duties e.g. clause 16.3 of the Mobile Crane Hiring Award 2020.

[4] AMWU v Berri Pty Limited (2017) 268 IR 285; [2017] FWCFB 3005.

[5] Mr Neville's submissions dated 27 October 2025 at [36] and Freo Group's submissions dated 10 November 2025 at [35].

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