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[2026] FWC 551
General information, not legal advice.
Fair Work Commission
2026-02-23
Original judgment source is linked above.
s.739 - Dispute resolution
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
[1] Pursuant to Clause 41 'Dispute Settlement Procedure' (DSP), of the Ausgrid Enterprise Agreement 2024 (the 2024 Agreement), an application (the Application) was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU/the Applicant). The dispute relates to Clause 20 'Overtime' and Clause 21 'On Call of the Agreement'. The Applicant disputes the manner in which Clause 20 and Clause 21 have been applied by Ausgrid Management Pty Ltd (Ausgrid/the Respondent).
[2] There was no dispute that each of the steps in the DSP had been complied with, and the Fair Work Commission (the Commission) had power to arbitrate the dispute.
[3] The parties helpfully prepared and provided an Agreed Statement of Facts and Questions for Determination (ASOF). The ASOF is as follows:
Agreed Statement of Facts and Questions for Determination
1. This dispute concerns employees who, on a particular day:
a. are rostered on call (and in receipt of the on call allowance);
c. are called out to emergency and/or breakdown work before their ordinary hours are rostered to commence and do not return home until after their ordinary hours are rostered to commence (Before Shift Scenario); or
d. work their rostered ordinary hours and continue working immediately after their
ordinary hours are rostered to finish (After Shift Scenario).
5. On 14 February 2025, the Ausgrid Enterprise Agreement 2024 (2024 Agreement) commenced operation. Clauses 20.7.1 (continuous overtime), 21 (on call) and 41 (dispute settlement procedure) in the 2024 Agreement are the same as those clauses in the 2021 Agreement.
7. From 10 to 16 May 2025 (inclusive), Mr William Hatty was rostered on call. Mr Hatty received the on call allowance for this period.
a. Mr Hatty was rostered to work ordinary hours between 0630 and 1500;
b. at or around 0330, Mr Hatty was called out to clear a tree from an overhead wire (12 May Job);
c. at or around 1700, Mr Hatty finished work. Mr Hatty performed work on the 12 May Job between approximately 0330 and 1700; and
9. The parties agree that the 12 May Job was "emergency and/or breakdown work".
10. On 6 June 2025, Mr Joshua Williams was rostered on call. Mr Williams received the on call allowance for this day.
a. Mr Williams was rostered to work ordinary hours between 0600 and 1430;
c. Mr William's work crew was performing a scheduled excavating job which needed to be completed that day (6 June Job). All members of the work crew were rostered to work ordinary hours between 0600 and 1430;
e. Mr Williams completed the 6 June Job between 1430 and 2000; and
f. at or around 2000, Mr Williams arrived back home.
12. From 20 to 26 June 2025 (inclusive), Mr Michael Ferry was rostered on call. Mr Ferry received the on call allowance for this period.
a. Mr Ferry was rostered to work ordinary hours between 0630 and 1500;
c. Mr Ferry attended a safety day in Mingara between 0630 and 1500;
d. over the course of the day, prior to 1500, Ausgrid had a number of jobs arise relating to incidents caused by high winds (25 June Jobs);
e. Mr Ferry completed the 25 June Jobs from approximately 1500 to 1930; and
14. The parties agree that the 25 June Jobs were "emergency and/or breakdown work".
15. As the disputes remained unresolved, on 30 May 2025, the ETU escalated the disputes to "tier 3" by making an application to the Commission for it to resolve the disputes, in accordance with clause 41.2 of the Agreement.
a. in the Before Shift Scenario, an employee should be paid the call out rates as defined in clause 21.7 from the time they receive the call until the time their ordinary hours are rostered to commence. This dispute focuses on what rate(s) of pay the employee should receive if they continue working past the point at which their ordinary hours are rostered to commence;
b. in the After Shift Scenario, if an employee finishes work at the time their ordinary hours are rostered to finish and, in the process of returning home, are called out to emergency and/or breakdown work, the employee should be paid the call out rates as defined in clause 21.7 from the time they receive the call until the time they arrive back home. This dispute focuses on what rate(s) of pay the employee should receive if the employee continues to work beyond the time their ordinary hours are rostered to finish (without any break).
17. The parties agree that the questions for determination by the Commission are:
a. When is an employee on call for the purposes of clause 21 of the 2024 Agreement?
b. What rate(s) of pay should Mr Hatty have received for work performed on 12 May 2025 as outlined at paragraphs 7 to 9 above?
c. What rate(s) of pay should Mr Williams have received for work performed on 6 June 2025 as outlined at paragraphs 10 to 11 above?
d. What rate(s) of pay should Mr Ferry have received for work performed on 25 June 2025 as outlined at paragraphs 12 to 14 above?
[5] Clause 20 of the Agreement 'Overtime', states:
Subject to clause 20.2.1, Ausgrid may require an employee to work reasonable overtime at overtime rates.
(a) any risk to the employees' health and safety;
(b) the employee's personal circumstances including any family responsibilities;
(c) the needs of the workplace;
(d) the notice (if any) given by Ausgrid of the overtime and by the employee of their intention to refuse it; and
(e) any other relevant matter.
All time worked in excess of scheduled ordinary hours shall be overtime unless the employee and manager have altered them by agreement in accordance with clause 18, Hours of work.
(a) Worked in excess of 72 hours per fortnight;
(i) except for employees covered by clause 45, Professional Managers & Specialists, in which case all time worked in excess of 80 hours per fortnight will apply:
- if no arrangement under clause 45.4 is in place; and
- where the approval under clause 20.4.4 has been provided.
(b) Worked outside the period 0600 - 1800 hours Monday to Friday;
(i) except where any adjustment has been made by mutual agreement under subclause 18.3 Span of Ordinary Hours; or
(ii) except for employees covered by clause 45, Professional Managers & Specialists, in the case where an arrangement under clause 45.4 is in place; or
(iii) where the approval under clause 20.4.4 has not been provided.
The following overtime rates, calculated using the Ordinary Rate of Pay, shall apply to employees who are not On Call and work Overtime Hours:
First two hours at time and a half. Additional hours at double time.
Overtime worked from midnight Friday to midday Saturday
First two hours at time and half. Additional hours at double time.
Overtime worked from midday Saturday to midnight Sunday
In the case of non shift workers, overtime worked on a Public Holiday or Agreement Holiday, outside of the employee's normal working hours
All hours paid at double time and a half until the employee finishes.
In the case of non shift workers, all work done on a Public Holiday or Agreement Holiday during the time which would have been the employee's normal working hours
In the case of shift workers, all overtime worked on a day which they are rostered off.
(Note: shift workers are not entitled to overtime as a result of changed shifts which they organise amongst themselves)
In the case of shift workers, all overtime commenced on a Public Holiday or Agreement Holiday
All hours paid at double time and a half until the employee finishes.
(a) is not On Call; and
(b) is notified of working overtime while not at work and where they are required to return to work immediately; and
(c) works Overtime Hours.
(a) is not On Call; and
(b) the employee is notified of working overtime where they are not required to attend work immediately; and
(c) works Overtime Hours.
(a) works Overtime Hours starting directly before or after, and is continuous with their scheduled ordinary hours; or
(b) works Overtime Hours directly before AND after their scheduled ordinary hours.
(a) is not On Call;
(b) is contacted for business purposes while not at work; and
(c) as a result of that contact, performs work but is not required to attend work.
a) the remainder of the 10 hours that overlap the RDO shall be credited towards the employee's RDO balance on a time for time basis; or > > b) the whole RDO shall be accrued. The remaining balance of the work day hours following the rest period are considered ordinary work hours and are to be worked
By agreement with their manager, an employee may elect to take time off in lieu (TOIL) of overtime. The TOIL provisions are as follows:
[6] Clause 21 of the Agreement 'On Call', states:
(4) hours, whether continuous or not, before having a ten (10) hour break, the employee shall be paid double time for all hours worked until a break of ten
(10) consecutive hours has been taken.
[7] Item 6 of Appendix 1 B "Ausgrid Allowances and Extra Rates" lists an On Call allowance with a frequency of "per day" with rates that vary over the term of the Agreement from $75.85 to $80.47.
[8] Mr Hatty, Mr Williams and Mr Ferry each provided original statements and statements in reply that dealt with Call Outs generally, and the circumstances of the dates relevant to their question. Mr Dane Hansen, and Underground Leading Hand provided a statement dealing with Call Outs generally, and payment for Call Outs at the Banksmeadow depot. Mr Hansen, Mr Hatty and Mr Williams were cross-examined.
[9] The Respondent relied on the evidence of Mr Matt Grant, Field Delivery Manager - Newcastle, who prepared a statement and was cross-examined. His evidence traversed the Respondent's operations and the on call process and payments. He also dealt with the individual circumstances of Mr Hatty, Mr Williams and Mr Ferry.
[10] In AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women's Hospital, the Full Bench of the Commission distilled principles for agreement interpretation from the majority judgment of the Full Court of the Federal Court in James Cook University v Ridd, as follows:
(1) The starting point is the ordinary meaning of the words, read as a whole and in context.
(2) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a practical bent of mind. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.
(3) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association.
(4) Context may include ideas that gave rise to an expression in a document from which it has been taken.
(5) Recourse may be had to the history of a particular clause where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form.
(6) A generous construction is preferred over a strictly literal approach but agreements should make sense according to the basic conventions of the English language.
(7) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry." (Emphasis added)
(8) In short, regard may be had to predecessor instruments before a conclusion is made that an agreement is ambiguous.
(a) Question 1 - When is an employee on call for the purposes of clause 21 of the 2024 Agreement?
[11] The CEPU submits that clauses 21.2 and 21.3 make clear that an employee is on call each day they are rostered on call and receive the on call allowance. That interpretation arises not only from the ordinary words in clause 21, but also by the industrial context, including the Respondent's Fatigue Management Procedure, which provides: '[a] person is On Call when they are rostered to be ready to go to work at any time if they are needed, especially if there is a life and limb situation'.
[12] If persons are rostered on call for a day they receive the on call allowance for a day, and they are on call for the duration of that day. The CEPU submit that interpretation is confirmed by the circumstances of Mr Ferry in that when he performed a call out on 25 June 2025, he received the call from his supervisor that he was required to proceed to that call out at approximately 2:30 pm that day, during his ordinary hours.
[13] The CEPU submit that their interpretation, that an employee is on call for that entire 24 hour period, is supported by Mr Grant's evidence where he stated 'an on call allowance, which is a per day allowance that is paid for each day that the employee is on call'.
[14] The Respondent submitted that at its highest the position the union puts is that employees should be paid a penalty rate for working their ordinary rostered shift. The Respondent submits that is repugnant, not only to the clear words of the 2024 Agreement, but to its evident industrial purpose.
[15] Employees are rostered to work their ordinary hours, and within those ordinary hours employees are required to be available to do both planned and unplanned, or emergency work. Where there is a need for unplanned, emergency or additional work, that can be done either:
(a) Through overtime, which can include unplanned or continuous overtime; or
(b) Through enactment of a call out of an employee who is on call, and where the company does that there is a compulsion to perform the work, but a cost to the company of the higher penalty rate.
[16] The Respondent noted the entitlement to payment of the penalty rate (Clauses 21.5, 21.7 and 21.8) is expressed to occur where there is a call out, which is a form of words which is different to being on call. The sequence of conditions which must be present are:
(a) The employee must be on the on call roster; and
(b) The work the employee is asked to perform must have two features. The first is that it's emergency or breakdown work, and the second, is that it's to be done _'_outside of the employee's usual hours of duty', per Clause 21.4 of the 2024 Agreement.
[17] The Respondent submits that there is a binary distinction in Clause 21.4 between an employee's usual hours of duty and on call hours.
[18] The Respondent further submits the provisions contemplate there must be an actual call out, to require the employee to come in and do the work. That is the point at which the person moves from simply being on call to being called out.
[19] Finally, the Respondent submitted that if it were correct that a period of work that includes a call out is a period to which the double time penalty is attached, Clause 21.9 would not be necessary, being the provision that entitles employees to payment at double time where they resume duty after a call out until they have a 10 hour break.
[20] The CEPU submitted the purpose of the inclusion of the words "at all times" in Clause 21.4 is to set out what a person on call is compensated for. It doesn't specify when an employee can be on a call out.
[21] Regarding the submission on Clause 21.9 of the on call provision not being necessary on the CEPU interpretation of the 2024 Agreement, the CEPU submitted that Mr Grant actually accepted a scenario in which clause 21.9 would be provided work.
[22] Regarding the claimed need for a positive step to occur to enliven a call out, the CEPU submitted that doesn't have to be a phone call necessarily, and it can be a common practice within a depot, as is the case for Mr Williams.
[23] As is made clear in paragraph 1 of the ASOF, this dispute only concerns a limited group of employees who, on a particular day:
(a) are rostered on call (and in receipt of the on call allowance); and
[24] Clause 21.4 of the 2024 Agreement outlines the circumstances in which an employee is on call, as follows:
21.4 An employee who is on call is required to be available for emergency and/or breakdown work at all times outside the employee's usual hours of duty. Upon receiving a call for duty, the employee is to proceed directly to the job when an Ausgrid vehicle is provided for take home use. When an Ausgrid vehicle is not provided for take home use the employee should proceed to their depot to collect the appropriate vehicle, plant and materials as required.
21.4.1 Emergency and/or breakdown work includes restoring supply to our customers or making equipment safe which has failed or is likely to fail or maintenance work which is essential to prevent a supply failure. This includes work not only on Ausgrid's equipment but also on our customers' equipment.
[25] I consider the plain and ordinary meaning of clause 21.4 is that an employee is on call for the purposes of the Agreement:
(a) to complete 'emergency and/or breakdown work' only; and
(b) at times that are 'outside the employee's usual hours of duty'.
[26] The consequence of the above is that once an employee is within their usual hours of duty, they are not and cannot be on call, even if they are attending to emergency and/or breakdown work.
[27] Clauses 21.2 and 21.3, and Clauses 21.5 to 21.8, do not assist in the interpretation of when an employee is on call. Clauses 21.2 and 21.3 deal only with the payment of the on call allowance, and Clauses 21.5 to 21.8 deal only with penalty rates for time spent on call outs.
[28] Clause 21.4 also introduces the need for receipt of a "call for duty" to activate an employee's call out. That provision clearly requires a positive step to occur to enliven a call out, ordinarily an actual telephone call. I do not accept the CEPU's submission that a "call for duty" could be constituted a common practice within a depot, and not direct communication.
[29] Finally, I accept that the Respondent's construction of clause 21 is consistent with a purposive approach to the clause. It provides a means for the Respondent to have certain employees available to perform emergency and/or breakdown work outside employees' usual hours of duty, and the payment for such availability and actual work performed.
[30] Question 1 was: When is an employee on call for the purposes of clause 21 of the 2024 Agreement? The answer to that question is:
An employee is on call for the purposes of clause 21 of the 2024 Agreement when they are rostered on call and it is a time that is outside their usual hours of duty_._
(b) Question 2 - What rate(s) of pay should Mr Hatty have received for work performed on 12 May 2025 as outlined at paragraphs 7 to 9 above?
7. From 10 to 16 May 2025 (inclusive), Mr William Hatty was rostered on call. Mr Hatty received the on call allowance for this period.
a. Mr Hatty was rostered to work ordinary hours between 0630 and 1500;
b. at or around 0330, Mr Hatty was called out to clear a tree from an overhead wire (12 May Job);
c. at or around 1700, Mr Hatty finished work. Mr Hatty performed work on the 12 May Job between approximately 0330 and 1700; and
9. The parties agree that the 12 May Job was "emergency and/or breakdown work".
[33] Mr Hatty's rostered hours were from 0630 to 1500. While the CEPU claim that the double time pursuant to Clause 21.7 on the 2024 Agreement should have continued during the rostered hours and until 1730 when Mr Hatty returned home, the exclusion of the employee's usual hours of duty from the on call provisions mean that Mr Hatty was only entitled to ordinary earnings from 0630 to 1500.
[35] I do not consider that after that eight and a half hour period the need for call out somehow continued to exist or was resurrected. Mr Hatty was entitled to overtime rates pursuant to Clauses 20.4 and 20.7 at time and a half until he left the site at 1700.
(c) Question3 - What rate(s) of pay should Mr Williams have received for work performed on 6 June 2025 as outlined at paragraphs 10 to 11 above?
[36] Paragraphs [10] and [11] of the ASOF provided:
10. On 6 June 2025, Mr Joshua Williams was rostered on call. Mr Williams received the on call allowance for this day.
a. Mr Williams was rostered to work ordinary hours between 0600 and 1430;
c. Mr William's work crew was performing a scheduled excavating job which needed to be completed that day (6 June Job). All members of the work crew were rostered to work ordinary hours between 0600 and 1430;
e. Mr Williams completed the 6 June Job between 1430 and 2000; and
f. at or around 2000, Mr Williams arrived back home.
[37] On 6 June 2025, Mr Williams was allocated to planned work that required the excavation of a joint bay to allow jointing work to be completed and then the filling in of the hole that had been excavated after the jointing had been completed.
[38] The parties agree the work performed between 0600 - 1430 was not "emergency and/or breakdown work". The CEPU's position was that the work became "emergency and/or breakdown work" at 1430, while the Respondent's position was it was not "emergency and/or breakdown work".
And I think your evidence is that when you got to the end of your rostered shift at 1430 the job was incomplete? --- Yes.
You didn't call the supervisor to talk about that? --- It's not really common practice, but, no, I did not.
My question is whether you did or did not? --- No, I did not.
You didn't call the supervisor, and you did not receive a phone call from the supervisor? --- No.
So there was no instruction given to you that you should continue working? --- No.
But you decided you should keep working to complete the job? --- Yes.
[40] I previously observed that Clause 21.4 introduces the need for receipt of a "call for duty" to activate an employee's call out. That certainly did not occur in Mr William's circumstance. There was also nothing that turned what was not "emergency and/or breakdown work" into such work from 1430.
[41] Mr Williams was was entitled to overtime rates pursuant to Clauses 20.4 and 20.7 at time and a half from 1430 to 1630, and double time from 1630 to 2000.
(a) When is an employee on call for the purposes of clause 21 of the 2024 Agreement?
An employee is on call for the purposes of clause 21 of the 2024 Agreement when they are rostered on call and it is a time that is outside their usual hours of duty.
(b) What rate(s) of pay should Mr Hatty have received for work performed on 12 May 2025 as outlined at paragraphs 7 to 9 above?
(c) What rate(s) of pay should Mr Williams have received for work performed on 6 June 2025 as outlined at paragraphs 10 to 11 above?
Applicant's submissions were filed on 30 October 2025
Respondent's submissions were filed on 24 November 2025
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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Ausgrid Management Pty Ltd Trading AS Ausgrid [2026] FWC 551