Fair Work Act 2009

s.739 - Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Visy Glass Operations (Australia) Pty Ltd T/A Visy Glass Australia

Alleged dispute about any matters arising under the enterprise agreement and the NES

• [1] On 10 December 2024, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Worker's Union's (the AMWU) (collectively referred to as the Applicants) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with clause 7.2 of the Visy Glass Brisbane (Maintenance Employees) Enterprise Agreement 2022 (2022 Agreement). Visy Glass Operations (Australia) Pty Ltd T/A Visy Glass Australia is the Respondent to this application (Visy/the Respondent).

• [2] I listed the matter for a conference on 19 December 2024. The matter did not resolve at conference, resulting in the matter being listed for arbitration.

• [3] Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing by Video using Microsoft Teams on 5 February 2025. The AMWU was represented by Mr Daniel Peatey, Industrial Advocate. The CEPU was represented by Ms Kait Teague, Industrial officer of Electrical Trades Union (ETU). The Respondent was represented by Mr Ben Kunstler, National Industrial Relations Manager & Workplace Counsel of Visy.

• [4] Mr Adam Davis, Mechanical Maintenance Fitter of the Respondent and AMWU delegate and State President gave evidence at the hearing and was cross-examined.

• [5] The Respondent operates a glass re-manufacturing plant in South Brisbane, Queensland. Approximately 50 maintenance workers are employed in mechanical and electrical work of which ten are shift workers.

• [6] Prior to the 2022 Agreement being approved, maintenance workers were covered by the O-I Brisbane (Maintenance Employees) Enterprise Agreement 2019 (2019 Agreement). Prior to the 2019 Agreement being approved, maintenance workers were covered by the O-I Brisbane (Maintenance Employees) Enterprise Agreement 2017 (2017 Agreement).

• [7] Prior to the negotiation of the 2022 Agreement, Visy publicly announced plans to relocate its current glass re-manufacturing operations from the South Brisbane site to a new site located in Yatala in 2025 or 2026.

• [8] After the announcement, a key focus for the affected workers and the AMWU and ETU in negotiations for the 2022 Agreement was securing each employees' choice between redeployment to the Yatra site or redundancy. Securing the best possible severance conditions for the redundancies that were expected to occur during the life of the 2022 Agreement was very important.

• [9] In late 2024, Visy identified a number of roles to be made redundant as the South Brisbane site prepares for closure. At the time of the hearing on 5 February 2025, the first round of redundancies was scheduled to occur later in February 2025.

• [10] Visy consulted with affected employees and those who were to be made redundant in February 2025 were provided with estimates of their redundancy entitlements. One of the employees who was to be made redundant on 28 February 2025 is a mechanical shift worker.

• [11] The parties are in dispute about the proper application of clause 9.4.14 of the 2022 Agreement as it relates to the payout of sick leave upon retrenchment of shift workers. The parties have been in discussions about the subject of this dispute since early October 2024 but have been unable to reach agreement.

• [12] On 3 December 2024, Mr Adam Davis, an AMWU member commenced a dispute under the Agreement by writing to Mr Trevor Ogilvie, Supervisor. The dispute didn't resolve at supervisor level, so later that day, Mr Peatey escalated the dispute to Ms Marita Wachter, Visy Manager. On 4 December 2024 Mr Scott Reichman, Deputy Secretary, ETU also escalated the dispute to Ms Watcher on behalf of ETU members affected by the issue.

• [13] On 9 December 2024, Mr Davis and representatives of the AMWU and ETU met with Ms Watcher, Mr Ian Harmer, Visy General Manager Industrial Relations, and Mr Kunstler.

• [14] Following the 9 December 2024 meeting the parties were still in dispute.

• [15] The AMWU and CEPU notified the Commission of the dispute on 10 December 2024, seeking the Commission arbitrate the question of whether the 'value' of the sick leave on retrenchment for shift workers is inclusive or exclusive of relevant shift penalties.

• [16] The site closure and redundancy arrangements are set out in Part 9 of the 2022 Agreement.

"9.4.5. "Relevant rostered shift penalties' means the total roster weekly average of the following penalties:

9.4.6. "Relevant rostered shift penalties' does not include:

PROVISIONS TO APPLY TO ALL REDUNDANCY SITUATIONS

9.4.7. Period of notice or payment in lieu in accordance with the relevant Award.

9.4.8. Four weeks' pay per year of completed service. Payment for incomplete years of service shall be made on a pro-rata basis to completed months.

9.4.9. Relevant rostered shift penalties for Shift Workers will apply,

9.4.11. Retrenched employees: a. with less than 5 years continuous service $3,000. b. with 5 or more years continuous service $5,000.

9.4.12. All retrenched employees shall receive a loading of 17.5% (or for shift workers the applicable shift penalty whichever amount is the greater) on all untaken annual leave and long service leave that is paid out.

9.4.13. All retrenched employees with more than 5 years continuous service will receive pro-rata long service leave.

9.4.14. All retrenched employees shall receive the value of untaken sick leave standing to their credit at the time of termination of service."

• [17] Provisions regarding Personal leave are set out in Part 4 of the 2022 Agreement.

"4.5.3. The operation of this clause must not be applied so as to limit the quantum of accrued personal leave an employee may access in any year.

- to be accessed in line with the Award or as per current practice

- entitlement is (10) days in the first year, (10) days in subsequent years

- relevant shift penalty to apply as per shift averaging

- to be accessed in line with the Award, i.e. Immediate family/household.

- access to Carers leave will be via accrued sick leave."

• [18] The parties agreed that the following question should be determined by the Commission:

"For a shift worker, does the 'value' of untaken sick leave on retrenchment per clause 9.4.14 of the 2022 Agreement include the relevant shift penalties which would be payable to the shift worker had they taken sick leave during their employment?"

• [19] The AMWU filed submissions in these proceedings which were adopted by the ETU.

• [20] The Applicants submitted that the 'value' of the sick leave upon retrenchment for the shift workers is inclusive of relevant shift penalties. The AMWU stated that this is consistent with the fact that shift workers received their shift penalties each week, regardless of whether they attend wok or are on paid annual leave, long service leave or paid sick leave.

• [21] The Applicants submitted that 'Value' is not defined in the 2022, 2019, or 2017 Agreements or the Act, so it should be given its ordinary meaning and read in the context it appears in accordance with the principles outlined in AMWU v Berri Pty Limited (Berri)[1] and WorkPac Pty Ltd v Skene.[2]

• [22] The Applicants submitted that it is uncontroversial to note the value of sick leave is different for each employee. Differences in classification mean a period of sick leave has a different value depending on the employee's hourly rate. Similarly, differences in leave balances between employees mean the value of the untaken sick leave is higher where an employee's balance is higher.

• [23] Further, the value of a period of sick leave is higher for a shift worker than a non-shift worker, as per clause 4.5.3(a) of the 2022 Agreement, relevant shift penalties are paid during periods of paid sick leave.

• [24] Where an accrued leave entitlement is being converted into a dollar value on retrenchment, the Applicants submitted that a reasonable person would understand the dollar value of a period of untaken sick leave to be the same dollar value the employee would receive when they accessed that leave entitlement. The Applicants argued that the same process is occurring when an employee accesses sick leave during their employment; an accrued entitlement is being redeemed for a monetary amount specific to that employee. The balance of the leave reduces, and the employee receives a corresponding amount of payment.

• [25] The Applicants submitted that there is no support in the text of the 2022 Agreement for a suggestion that the dollar 'value' of sick leave was intended to be different on termination than it is when it is accessed during employment.

• [26] Further to their ordinary meaning submissions, the Applicants submitted that their preferred construction is supported by the broader context in which clause 9.4.14 appears. That is, in context of the whole of the redundancy provision in Part 9 of the 2022 Agreement.

• [27] In Part 9, accrued annual leave is paid out inclusive of the annual leave loading of 17.5%. In the case of shift workers, the relevant shift penalty is paid instead of the 17.5% loading, as the shift penalty represents a greater amount. The Applicants noted that this is consistent with the value of annual leave when it is taken during employment. The same principles also apply in respect of long service leave paid out on redundancy. Additionally, the four weeks of severance pay per year employees are entitled to on retrenchment is also paid out inclusive of the relevant shift penalties for shift workers.

• [28] The Applicants therefore argued that clause 9.4.14 exists in a context where each of the other separately identifiable time-based entitlements paid out on retrenchment are paid out inclusive of the applicable loadings or shift penalties. The Applicant submitted that this represents a situation where the other entitlements are paid out based on their 'value' to the employee, in that they receive the amount they would have had they worked the relevant weeks or taken the relevant leave during their employment. As such, the Applicants submitted that it would be consistent, having regard to the context of the Agreement as a whole, for clause 9.4.14 to be treated in the same way.

• [29] The Applicants submit that the answer to the question for arbitration is 'yes'.

• [30] Mr Davis is employed as a mechanical fitter by Visy at the glass re-manufacturing plant in South Brisbane. He has worked at the site for approximately 20 years under various employers. Mr Davis is an AMWU delegate and is currently the elected State President of the QLD/NT Branch of the AMWU.

• [31] Mr Davis is not currently a shift worker.

• [32] Mr Davis has been involved in consultation about the phased reduction of work being performed at the South Brisbane site which is expected to result in approximately seven maintenance role being made redundant on 28 February 2025.

• [33] Mr Davis was a bargaining representative and actively participated in negotiations for the 2017 Agreement, the 2019 Agreement and the 2022 Agreement.

• [34] Mr Davis stated that by the time negotiations for the 2022 Agreement had commenced, Visy had already announced its intention to relocate operations.

• [35] Mr Davis stated that Visy made it made abundantly clear from the onset of negotiations for the 2022 Agreement that it was not interested in taking the 2019 Agreement to the new site, stating it would be a greenfields site. The members' pay and conditions not being unilaterally transferred, combined with the 37-kilometre relocation distance resulted in the overwhelming view that the 2022 Agreement would be a closure agreement.

• [36] Members wanted to ensure that they could only be relocated to the Yatala site with their consent and for those who did not wish to relocate, they would be made redundant.

• [37] Affected workers told Mr Davis that the redundancy provisions were a key focus for the 2022 Agreement, even at the cost of maximising a headline percentage wage escalation. The AMWU considered this an important issue when it commenced bargaining.

• [38] One of the redundancy claims the two unions brought to bargaining was to clarify (in what became clause 9.4.12 of the 2022 Agreement) that when long service leave was paid out on retrenchment, that it would be paid inclusive of leave loading or relevant shift penalties for shift workers.

• [39] Mr Davis' evidence is that employee bargaining representatives did not advance a corresponding claim to clarify in the text of the 2022 Agreement that shift loading would be payable on untaken sick leave balances when they were paid out on retrenchment as those employee bargaining representatives did not understand there to be any ambiguity that the shift penalties would be included in the value of the leave for the shift workers.

• [40] It was only when redundancy estimates were issued to affected employees in late 2024 that the AMWU became aware Visy was not intending to pay out the value of the sick leave inclusive of shift penalties for shift workers.

• [41] At the time of the hearing, Visy employed approximately 50 maintenance workers. Ten of the maintenance workers are engaged as shift workers; five electrical and five mechanical employees.

• [42] The five mechanical maintenance shift workers work a rotating roster that repeats every 15 weeks. The shift workers rotate through a sequence of day, afternoon and night shifts, including work on Saturdays and Sundays.

• [43] Each week a shift worker is paid for 35 ordinary hours at their normal rate of pay as well as 14.37 penalty hours at their normal rate to reflect the averaged penalty hours. This has

the effect of 'smoothing' the amount the shift worker receives each pay week, rather than shift workers receiving more in some pay periods than others.

• [44] Shift workers receive payment for their 35 ordinary hours and their 14.37 penalty hours

each week. They still receive payment for 35 ordinary hours and 14.37 penalty hours when they access paid annual leave, long service leave or paid sick leave for some or all of their shifts.

• [45] The 14.37 penalty hours has been applied each week without change during the life of the 2022 and 2019 Agreements.

• [46] Visy stated that the parties have been in discussions regarding the proper construction of clause 9.4.14 of the 2022 Agreement since early October 2024. The parties are in dispute as to whether shift loadings are payable on unused sick leave paid on redundancy due to the site closure.

• [47] Visy agreed that the Dispute Settlement Procedure in clause 7.2 of the 2022 Agreement has been compiled with and, accordingly, the FWC has jurisdiction to arbitrate the dispute.

• [48] Visy submitted that the world "value" in clause 9.4.14 of the 2022 Agreement is capable of more than one meaning. In accordance with the principles outlined in Berri,[3] evidence of the surrounding circumstances is therefore admissible to aid the interpretation of the agreement.

• [49] The South Brisbane site was acquired by Visy in 2020 from O-I Operations (Australia) Pty Ltd, who purchased the business from ACI Operations Pty Ltd in or about 1998. The 2022 Agreement's redundancy provisions originate from the ACI Glass packaging Australia, Glass Industry Severance Certified Agreement 1996 (1996 Severance Agreement), and have had minor amendments over time. Clause 9 of the 1996 Severance Agreement provided as follows:

"9. Provisions to apply to all Redundancy Situations:

(i) Period of notice or payment in lieu in accordance with the relevant Award.

(ii) Four weeks pay per year of completed service. Payment for incomplete years of service shall be made on a pro-rata basis to completed months.

• with less than 5 years continuous service $3,000.
• with 5 or more years continuous service $5,000.

(v) Retrenched employees shall receive a loading of 17.5% (or for shift workers the applicable shift loading whichever amount is the greater) on all untaken annual leave that is paid out.

(vi) All retrenched employees with more than 5 years' continuous service will receive pro-rata long service leave.

Where applicable the current loading percentage shall be paid on pro rata long service leave in accordance with the appropriate agreements in each plant.

(vii) All retrenched employees shall receive the value of untaken sick leave standing to their credit at the time of termination of service."

• [50] The 1996 Severance Agreement was replaced by successive severance agreements in 2000, 2003, 2006 and 2009. Between the 1996 Severance Agreement and the 2000 replacement, the ACI Glass Packaging - Brisbane (Maintenance Employees) - Certified Agreement 1999 (1999 Agreement) came into force on 16 March 2000. Clause 34 of that Agreement provided:

(i) Relevant rostered shift penalties for shift workers will apply to severance payments retrospective on or from 1.7.2000 to a ceiling of 10 years service (40 weeks) from that date. Thereafter, on or from 1.7.2001 full retrospectively will apply.

(ii) The severance agreement which lapses on 1.7.2000 will be amended as in (i) above and recertified for a further 3 years duration from that date."

• [51] Based on the text of the 1996 Severance Agreement and the 1999 Agreement, Visy submitted that the common intention of the parties was for rostered shift penalties to only apply to severance payments and not the payment of the value of unused sick leave. Visy noted that aside from minor amendments, the redundancy provisions in the 2000 Severance Agreement were substantively unchanged in each successor agreement. Following the 2009 iteration of the severance agreement, severance agreements were incorporated as attachments to the O-I - Brisbane (Maintenance Employees) - Workplace Agreement 2013, and the 2017 Agreement. The severance agreement was then incorporated into the body of the 2019 Agreement at clause 9.3 and was renumbered to clause 9.4 in the 2022 Agreement.

• [52] The consequence is that the wording of clause 9.4 of the 2022 Agreement is substantively unchanged from the wording in clause 9 of the 1996 Severance Agreement. Further, at the time of the 1996 Severance Agreement, there was no equivalent provision to clause 4.5.3 of the 2022 Agreement, meaning there was no entitlement to shift penalties on sick leave. Visy therefore submitted that clause 9.4.14 of the 2022 Agreement must be understood in the context of its history. Because this clause appeared effectively unchanged compared to predecessor agreements, Visy submitted that the common intention of the parties was that an employee would be entitled to a lump sum payment in lieu of untaken sick leave calculated by reference to the employee's base rate of pay.

• [53] The entitlement to be paid shift penalties when taking sick leave was first included in the 2019 Agreement, and retained in the 2022 Agreement, at clause 4.5.3(a). At the time this entitlement was inserted into the 2019 Agreement, Visy noted that no amendment was made to the provisions relating to the payment in lieu of sick leave upon termination as a result of redundancy.

• [54] Considering that clause 9.3.13 of the 2019 Agreement specifically provided for shift penalties to be paid on annual leave, Visy argued that if the intention of the parties had been for the insertion of clause 4.5.3(a) to change the effect of redundancy pay entitlements, then that intention would have been expressed by an express amendment to the redundancy provisions. This did not occur, and be it a deliberate omission or otherwise, Visy submitted that because no amendment was made, the parties cannot be said to have intended to vary employees' entitlements on redundancy as they existed prior to the 2019 Agreement.

• [55] Visy submitted that clause 4.5.3(a) of the 2022 Agreement is confined in its application to sick leave taken in the course of employment. Visy stated that this was clear from the historical context, and the fact that a similar entitlement is provided in respect of long service leave under clauses 4.4.4 and 4.4.5. The fact that clause 9.4.12 was inserted to expressly provide for the payment of shift penalties on long service leave paid upon redundancy, Visy argued, is evidence that clauses 4.4.4 and 4.4.5 do not extend to redundancy payments. Visy noted that sick leave is absent from clause 9.4.12 of the 2022 Agreement, the implication being that shift penalties are not payable on unused sick leave paid on redundancy.

• [56] In respect of the evidence given by Mr Davis, Visy submitted that his evidence given in relation to the negotiations for the 2022 Agreement should be afforded no weight, as it merely offers subjective expectations from the AMWU's perspective, and does not establish the objectively common and shared intention of the parties. Noting the Berri principles, Visy submitted that objective facts are to be distinguished from the subjective intentions of the parties.

• [57] The CEPU filed reply submissions on behalf of the Applicants.

• [58] Despite arguing that "value" is susceptible to more than one meaning, the Applicants submitted the Visy has not advanced an alternative definition of the meaning of the term, nor described how it is ambiguous. The Applicant submitted that the "value" of accrued sick leave must be measured in dollar terms, because to have any "value" accrued hours must be converted into a monetary amount, which would vary between employees. If the hours of accrued sick leave are paid out at less than the rate of pay that would apply if the hours were taken, then the monetary amount would represent less than the hours accrued.

• [59] While Visy submitted that in the circumstances, evidence of surrounding circumstances is admissible in this matter, the Applicants noted that Visy has not filed any such evidence. Visy did provide a factual chronology of the former agreement provisions, however the Applicants submitted that this does not provide evidence of the intention or understanding of the parties, in accordance with the Berri principles.

• [60] The Applicants acknowledged that the payment of shift penalties on sick leave taken did not become an entitlement until 2019, they argued that cannot be evidence that the value of sick leave now does not include shift penalties. Building on their submission that the "value" of sick leave varies from employee to employee, the Applicants submitted that the meaning term can also vary from year to year as each iteration of the Agreement provides for pay increases. The Applicant submitted that it is arguable that the drafters of the 1999 Agreement, and subsequent agreements, used the word "value" with an understanding that the meaning of the word would change over time.

• [61] Visy's submission was that the common intention of the parties in drafting clause 9.4.14 was for a lump sum to be paid in lieu of untaken sick leave calculated by reference to the base rate of pay. The Applicant's argued that there is no evidence to support this submission, and that the drafters could have explicitly referred to the 'base rate of pay' or 'normal rate of pay' but instead used the word "value".

• [62] The Applicants noted that since 1999, the terms and conditions of employment have generally improved, and that it therefore cannot be argued that the drafters of previous agreements intended there be no improvements to the value of sick leave over time. As the 2019 Agreement introduced shift penalties on sick leave, the Applicant submitted the 2019 Agreement increased the value of sick leave for shift workers. Therefore, given that clause 9.4.14 of the Agreement refers to "value" instead of 'base' or 'normal' rates of pay, the Applicant argued that any amendment to the clause would be unnecessary to provide for shift penalties to be paid on retrenchment.

• [63] The Applicants submitted that the exclusion of sick leave from clause 9.4.12 is unsurprising, because that clause is primarily concerned with the payment of the 17.5% loading for annual and long service leave on retrenchment. The reference to shift penalties for shift workers, which attract a greater amount than the ordinary 17.5% loading, was included as a bracketed exemption to the ordinary loading entitlement for annual and long service leave. Because sick leave does not attract a 17.5% loading, the Applicants argued that it would be inappropriate for clause 9.4.12 to refer to sick leave.

• [64] The Applicants submitted that no words of limitation appear in clause 4.5.3(a) which restrict the payment of shift penalties to sick leave when taken. If the penalties were only to apply to taken sick leave, the Applicant argued that the clause would have explicitly said so. The Applicants denied that there is any evidence that the parties intended to exclude shift penalties from sick leave payments; clause 9.4.12 was not inserted to provide for shift penalties to be paid out for annual and long service leave upon redundancy, but instead was included to provide for the payment of 17.5% loading to all employees (except for shift workers who would receive a greater shift penalty).

• [65] I am satisfied that the term "value of untaken sick leave standing to their credit" within clause 9.4.14 of the 2022 Agreement does not have a plain meaning and is ambiguous. It could have several meanings. It could mean the number of hours of sick leave the employee has accrued, then payable at their ordinary rate of pay. It could mean the amount the employee would be paid if they had actually taken the sick leave.

• [66] Given the term is ambiguous and open to more than one interpretation, it is necessary to have regard to evidence of the surrounding circumstances, together with the text of the agreement viewed as a whole.

• [67] It is clear to see that the bulk of clauses 9.4.4 to 9.4.14 of the 2022 Agreement have been lifted from the 1996 Severance Agreement. Clause 9(vii) of the 1996 Severance Agreement is the same as clause 9.4.12 of the 2022 Agreement. The "value" of sick leave in the 1996 Severance Agreement was at the ordinary rate of pay given there was no corresponding clause 4.5.3 in the 2022 Agreement which then provided for sick leave to include shift penalties.

• [68] There is, however, a relevant clause 9.4.9 in the 2022 Agreement. It reads:

"9.4.9 Relevant rostered shift penalties for Shift Workers will apply,"

• [69] This same term is within the O-I Brisbane (Maintenance Employees) Enterprise Agreement 2019 at clause 9.3.10. This 2019 Agreement was replaced by the current 2022 Agreement.

• [70] The clause is incomplete. It ends with a comma. It can be presumed that it was intended to end with a full stop.

• [71] In the O-I Brisbane (Maintenance Employees) Enterprise Agreement 2017, the relevant clause reads as follows:

"PROVISIONS TO APPLY TO ALL REDUNDANCY SITUATIONS

(i) Period of notice or payment in lieu in accordance with the relevant Award.

(ii) Four weeks' pay per year of completed service. Payment for incomplete years of service shall be made on a pro-rata basis to completed months.

Relevant rostered shift penalties for Shift Workers will apply,

• [72] It would appear to me that up until and including the 2017 Agreement, the term "Relevant rostered shift penalties for Shift Workers will apply," was included in the subclause (ii), applicable to the payment of four weeks' pay per year of completed service. In my view, it was not intended to flow to any of the entitlements below.

• [73] In the 2017 Agreement, carried on from the 1996 Severance Agreement, retrenched employees would be paid their shift loading on untaken annual leave pursuant to the following subclause:

"(v) Retrenched employees shall receive a loading of 17.5% (or for shift workers the applicable shift loading whichever amount is the greater) on all untaken annual leave that is paid out."

• [74] It would appear to me that the bargained state of play for entitlements in 2017 pursuant to the 2017 Agreement was as follows:

No reference to payment of shift loadings, unlike (v) above in respect to accrued annual leave

• [75] It would appear to me that the exact same entitlements existed in the 2019 Agreement, albeit I note that the term, "Relevant rostered shift penalties for Shift Workers will apply," received its own subclause, being 9.3.10. I consider it more likely than not to have been a formatting decision to provide it with its own numbering. I do not consider it had general application to the entire clause. I am fortified in that view particularly because pro rata long service leave was not expressed to have shift payments paid, and it wasn't until the 2022 Agreement where this materialised.

• [76] The difference between the 2019 Agreement and the 2022 Agreement is that, other than the numbering of the subclauses, pro rata long service leave is now expressly included to have shift penalties paid on it. This was new and not contained within the 2019 Agreement. I consider that amendment to have been a result of bargaining and agreement reached.

• [77] Clause 9.4.12 of the 2022 Agreement was expanded to not only have shift penalties apply to accrued annual leave, it now included pro rata long service leave. This would rightly be seen as a win for employees. Mr Davis' evidence is that this was brought to the bargaining table by the employee bargaining representatives and was achieved. The effect of that is shift penalties on pro rata long service on retrenchment did not apply until the 2022 Agreement came into effect.

• [78] I have no doubt that if it had been intended for shift penalties to apply to unused sick leave paid out on retrenchment, the clause would say so. Mr Davis' evidence is that a claim for shift penalties to apply on unused sick leave on retrenchment was not advanced as employee bargaining representatives considered that it already applied. This demonstrates that there was no consensus or meeting of the minds of the employer and the employee bargaining representatives.

• [79] There had been a clear and express improvement in conditions between the 2019 Agreement and the 2022 Agreement, that being shift penalties now applying on pro rata long service leave. The long-standing status quo of 20-plus years of sick leave being paid at base rate on retrenchment would, in my view, be undisturbed unless by express agreement and recorded in the 2022 Agreement in the same way that annual leave and pro rata long service leave is.

• [80] I consider that clause 4.5.3 provides for a payment to employees of the relevant shift penalties when they actually take the entitlement in their employment. I am not satisfied that it flows to apply and be considered the 'value" relevant to clause 9.4.14 of the 2022 Agreement when regard is had for the express work clause 9.4.12 does in respect of accrued annual leave and pro rata long service.

• [81] For the reasons given, the question posed for determination is answered as follows:

Question: For a shift worker, does the 'value' of untaken sick leave on retrenchment per clause 9.4.14 of the 2022 Agreement include the relevant shift penalties which would be payable to the shift worker had they taken sick leave during their employment?

• [82] The dispute is determined accordingly.

[1] [2017] FWCFB 3005.

[2] [2018] FCAFC 131.

[3] [2017] FWCFB 3005.

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