Fair Work Commission|2025-09-23

Construction, Forestry and Maritime Employees Union v DP World Brisbane Pty Ltd [2025] FWC 2150 (23 September 2025)

[2025] FWC 2150 [Note: An appeal pursuant to s.604 (C2025/10082) was lodged against this decision.]

s.739 - Dispute resolution

Construction, Forestry and Maritime Employees Union

Alleged dispute about any matters arising under the enterprise agreement and the NES -personal leave accrual of 13 days per year under enterprise agreement for Variable Salary Employees (VSE) and Fixed Salary Employees (FSE) - whether notional day construction applies - inconsistency between agreement and award - notional day construction applies - accrual based on ordinary hours - determination of ordinary hours per week for VSEs and FSEs - VSE ordinary hours are rostered hours - FSE ordinary hours are 35 per week

[1] On 15 November 2024, the Construction, Forestry and Maritime Employees Union (the MUA or the Applicant) filed an application with the Fair Work Commission (the Commission) seeking to resolve a dispute with DP World Brisbane Pty Ltd (the Respondent) under s.739 of the Fair Work Act 2009 (the Act). The dispute relates to the provisions of the DP World Brisbane Enterprise Agreement 2024 (the 2024 Agreement or the Agreement) dealing with personal leave accruals when employees convert from Variable Salary Employee (VSE) conditions and are promoted to Fixed Salary Employee (FSE) conditions.

[2] The MUA made the application pursuant to the dispute resolution procedure in clause 47 of the 2024 Agreement.

[3] I conducted a conciliation conference with the parties on 5 December 2024. Conciliation was unsuccessful. Following unsuccessful conciliation, I set directions for an arbitration hearing and held a further conference with the parties on 8 January 2025 to facilitate discussion regarding the question for arbitration, as the parties could not agree. The question for arbitration was determined as follows:

What should the balance of accrued personal leave entitlements of each of the affected employees have been following promotion from VSE to FSE, taking into account the relevant clauses in the Agreement, particularly the term "day"?

[4] The affected employees are the five members of the MUA noted in the Form F10. Those employees are covered by the 2024 Agreement and were promoted from VSE to FSE.

[5] The hearing was listed on 14 May 2025 to determine the question for arbitration. Mr Samuel O'Sullivan appeared for the MUA. The Respondent was granted leave to be represented by Mr Andrew Pollock of counsel.

[6] DP World did not contest the Commission's jurisdiction to arbitrate the dispute. The MUA stated that site-based discussions and national level discussions have been held. The MUA provided evidence of emails between the MUA and management regarding the dispute. I am satisfied that I have the jurisdiction to arbitrate the dispute per clause 47 of the 2024 Agreement.

[7] DP World Australia and its fully owned subsidiaries operate four terminals, located at:

(a) Port Botany in New South Wales (DP World Sydney);

(d) Fremantle in Western Australia (DP World Fremantle).[1]

[8] The matter relates to five employees covered by the Agreement employed at Fishermans Island terminal (DP World Brisbane): Anthony Serra, Ryan Jones, James Neil, Brock Henley and Brett Ryan[2] (the affected employees). The affected employees perform maintenance duties.

[9] The affected employees are covered by the 2024 Agreement, which commenced on 23 April 2024. Prior to the 2024 Agreement, those employees were covered by the DP World Brisbane Enterprise Agreement 2020 (the 2020 Agreement).

[10] Under the 2024 Agreement, and the predecessor Agreements, employees can be engaged in one of the following categories of employment: as a permanent employee, meaning either a fixed salary employee (FSE) or a variable salary employee (VSE); or, as a casual employee, known as a supplementary employee (Supplementary).[3]

[11] FSEs are permanent, full-time employees. FSEs have a fixed roster. VSEs are permanent employees and have a minimum salary guarantee. VSEs do not have a fixed roster and must make themselves reasonably available to meet the minimum salary and business requirements.[4] A VSE will receive payment each fortnight which in the greater amount of: (a) the VSE minimum salary or, (b) their actual earnings.

[12] Under the 2020 Agreement, the entitlement for personal leave was 13 days, with 10 days of personal leave and carer's leave which accumulated from year to year and 3 days of carer's leave which did not accumulate from year to year.[5] 10 days of personal leave were credited in advance on 1 July each year and the extra 3 days were made available if required.[6]

[13] The Respondent submits that VSEs had 35 ordinary hours of work per week under the 2020 Agreement and therefore each notional day was equivalent to seven-hours.[7] VSEs were credited 70 hours, being equivalent to ten seven-hour days, each year on 1 July. The Respondent submits that FSEs had an average of 42 hours per week, with 35 of those hours being ordinary hours.[8] The FSEs, according to the Respondent, "inadvertently" accrued 120 hours, calculated based on their shift length of 12-hours,[9] rather than 70 hours, calculated on a notional day of 7-hours.

[14] The MUA contends that the Respondent has moved away from historical practice. The MUA contests that the accrual for VSEs was always expressed in terms of days and provided evidence from the Respondent's HR system showing sick leave was expressed by reference to "days" in November 2023.

[15] The MUA contends that the accrued personal leave balances of each of the affected employees were reduced following their promotion from VSE to FSE. The affected employees under this dispute converted from VSE to FSE during a period when the 2020 Agreement applied. DP World argues that the affected employees did not have their leave reduced, but rather the divisor used to calculate the number of days of personal leave was changed which made it appear that the number of days leave had reduced. The affected employees had their leave recalculated because the divisor was changed from 7 hours to 12 hours. Of course, dividing the number of accrued hours by 12 results in a lower number of "days".

[16] I surmise that one reason why expressing the personal leave in terms of days is critical for the affected employees is because clause 23.6 allows for cashing out of personal leave "[w]here an Employee has accumulated in excess of 28 days unused personal leave". By way of illustration, prior to his promotion to FSE, Mr Serra's accrued leave was expressed as 40 days and following the promotion, it was 26 days.

[17] Errors in the calculation of accruals have perhaps complicated the dispute. DP World stated that following approval of the 2024 Agreement they became aware that certain FSE employees had "inadvertently accrued personal/carer's leave based on the length of their shifts, rather than their ordinary hours of work."[10] This arose out of a separate dispute with the AMOU.[11]

[18] The decision to approve the 2024 Agreement in this matter was appealed (together with the approval application for agreements for DP World's three other sites in Sydney, Melbourne and Fremantle). On 23 July 2024, the Full Bench allowed the appeal on the basis that the model consultation term should not have been taken to have been a term of the Agreements. Both the MUA and DP World refer to the Full Bench's decision in Construction, Forestry and Maritime Employees Union v DP World Melbourne Limited & Ors [2024] FWCFB 317 ('MUA v DP World') as setting out the test to be applied when considering inconsistency between an agreement and the relevant Award.

[19] Clause 23 of the 2024 Agreement provides for personal leave. The key clause is clause 23.3.1. Clause 23 states:

23.1 This clause shall be read in conjunction with clause 25 of the Stevedoring Award.

23.2 An employee may take paid personal/carer's leave if the leave is taken:

22.2.1 the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

22.2.2 to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of:

(a) a personal illness, or personal injury, affecting the member; or

23.3.1 From 1 July 2024, a Permanent Employee will accrue on a progressive basis thirteen (13) days per year for use as both personal leave and carer's leave which accumulates from year to year.

23.3.2 From approval of the Agreement, any of the three (3) carer's leave days which remain unused, will be credited to the Employees personal leave balance and will be accrued.

23.3.3 The requisite evidentiary requirements and Absence Management process are outlined in Appendix 1.

23.4 Payment for Personal leave shall be as follows:

23.4.1 FSE's shall be paid at the salaried rate as specified for the Employee's classification in the relevant section of this Agreement.

23.4.2 VSE's (Operations) shall be paid one-fifth (1/5) of the weekly VSE Operations Minimum Salary for each day of leave.

23.4.3 From the commencement of this Agreement, a VSE Maintenance who takes Personal Leave will have their leave paid at 1/5th of the VSE Maintenance Minimum Salary (see clause 18.5.2). Entitlements which existed prior to this Agreement will be paid at 1/5th of the VSE Operations Minimum Salary (see clause 18.5.1) and must be used prior to accessing leave at the higher rate. For the avoidance of doubt that will be 1/52 of the VSE Minimum Salary for one week of leave.

23.4.4 Where a permanent Employee has no entitlement to Personal leave and the Employee seeks carer's leave, the Company will consider the merits of the circumstance of the request and may apply its discretion to assist the Employee.

23.4.5 Casual employees (Supplementaries) are entitled to unpaid Personal leave in accordance with the Act and must comply with the evidentiary requirements set out in Appendix 1.

23.5 Personal Leave on termination of employment

23.5.1 An Employee will be paid the balance of any accrued but unused Personal Leave where their employment ends in the following circumstances:

(a) If s/he retires, is made redundant or dies. In the case of death, the Employee's legal representative will be paid an amount equivalent to the Employee's unused accumulated personal leave entitlement;

(c) is accepted by their superannuation fund as totally or permanently disabled.

23.5.2 Personal leave paid out in accordance with this subclause 23.5.1 will be paid at clause 11 - Rates of Pay where a day of personal leave is 8 hours.

23.6 Payment for excessive accrued personal leave

23.6.1 Where an Employee has accumulated in excess of 28 days unused personal leave, they may apply to receive payment for any amount of personal leave in excess of 28 days provided they do so between 1 July and 31 July each year. In cases of hardship, employees may apply at any time on a case by case basis. In each case of payment under this subclause 23.6.1:

(a) paid personal/carer's leave must not be cashed out if the cashing out would result in the employee's remaining accrued entitlement to paid personal/carer's leave being less than 15 days; and

(b) each arrangement for personal leave to be paid out must be separately agreed in writing and signed by the Company and the Employee; and

(c) the Employee will be paid at least at the rate the Employee would have received if the leave had been taken. For the avoidance of doubt:

(i) An Operations FSE will be paid 8 hours at their salary rate.

(ii) A Maintenance FSE will be paid for their rostered shift length at their salary rates

(iii) An Operations VSE will be paid one-fifth (1/5) of the weekly VSE Operations Minimum Salary for each day of leave.

(iv) A Maintenance VSE will be paid one-fifth (1/5) of the weekly VSE Maintenance Minimum Salary for each day of leave

[20] The MUA submits that the wording of clause 23.3 is clear and should be given its plain and ordinary meaning.

[21] The MUA notes that the entitlement to 13 days personal leave is an entitlement derived from the Agreement, rather than the NES.[12] An entitlement to 13 days is clearly greater than an entitlement to 10 days personal leave, which is what the NES provides for. The union notes that this is an entitlement which was won through bargaining for previous Agreements.

[22] The MUA explains the historical practice for personal leave arrangements for maintenance VSEs at the terminal involves payment of 1/5 of the VSE minimum salary and the deduction of one (1) day from the employee's accrued balance for each personal leave day taken. Similarly, for leave arrangement for FSEs involves payment of the employee's classified salaried rate and the deduction of one (1) day from the employee's accrued balance for each personal leave day taken.

[23] The MUA contests the Respondent's argument that the VSEs have 35 ordinary hours. The MUA submits that VSEs do not have a set number of ordinary hours per week, as they are remunerated by reference to a minimum salary. Further, the Agreement provides that an VSE will be available for "totally irregular allocation".[13] The MUA says that the reference to 35 ordinary hours of work per week in clause 14.2 is a "poorly drafted" reference to the Stevedoring Industry Award (the Award) classifications and rates of pay which are expressed on a weekly basis. Therefore, the reference to ordinary hours is simply for the purpose of providing a divisor to calculate the hourly rate of pay using the figure for weekly pay.

[24] The MUA submits that there is no need to look to the High Court's reasoning for personal leave accruals under the NES in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 271 CLR 495 ('Mondelez'), in which the majority found personal leave accrual under the NES is linked to a "notional day".

On a textual, contextual, and purposive interpretation, clause 23 of the 2024 Agreement

demonstrates an intent to cover the entitlement to thirteen (13) days of personal leave to the exclusion of the NES or the Award. There is no gap to be filled and the 2024 Agreement and the NES cannot be "sensibly or fairly read together" with respect to this subject matter in dispute.

[26] The MUA argues that the framers of the Agreement were: 'undoubtedly more concerned with expressing the intention of an ordinarily understood thirteen (13) day entitlement rather than incorporating esoteric judicial considerations of the highest court in the land or some other version of a "day"'.[14] The Applicant argues that DP World is using the High Court's reasoning in Mondelez as an "industrial axe" with which to "prise open a gap in clause 23 of the Agreement".

[27] DP World submits that personal leave must accrue on a progressive basis in accordance with the employees' ordinary hours of work, up to 13 "notional days". Respondent asserts that this amounts to 91 hours per year, based upon 35 ordinary hours per week.

[28] Clause 23.1 of the 2024 Agreement states: "This clause shall be read in conjunction with clause 25 of the Stevedoring Award." Clause 25 of the Award in turn refers to the NES. Further, the 2024 Agreement contains an NES precedence clause which states:

5.3 This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

[29] The Respondent argues that although there are detailed subclauses in clause 23 dealing with personal leave, other than the phrase "progressive accrual" there are no words to explain the basis for progressive accrual.[15] The Respondent contends that Section 96 of the NES, explains the basis for progressive accrual. Section 96(2) of the NES states:

(2) An employee's entitlement to paid personal/carer's leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee's ordinary hours of work, and accumulates from year to year.

[30] The Respondent argues that s.96(2) fills the gap by explaining personal leave accrues according to the employee's ordinary hours of work.

[31] The Respondent contends that their argument can be framed in similar terms to Mondelez. In Mondelez, the employees worked 12-hour shifts three times a week. The union argued that ten-days of personal leave under s.96 of the NES is based on a day as a "24 hour period" and that ten days entitles the employee to be absent for 10 shifts per year. The High Court found that day must be calculated according to the employee's ordinary hours of work and that one "day" refers to one-tenth of the employee's ordinary hours of work in a fortnight or one-fifth of those hours in a week.

[32] The Respondent refers particularly to the majority judgment in Mondelez at [41], where their Honours held:

The "working day" construction adopted by the majority in the Full Court (and urged by the Union parties in this Court) is not consistent with the purpose of s 96 or the stated objectives of the Fair Work Act of fairness, flexibility, certainty and stability. The "working day" construction would lead to inequalities between employees with different work patterns, and so would be unfair. An employee whose hours are spread over fewer days with longer shifts would be entitled to more paid personal/carer's leave than an employee working the same number of hours per week spread over more days.

[33] The Respondent says that the MUA's construction of "day" risks the same inequalities warned of by the High Court. Particularly, between VSE and FSE employees.

[34] The Respondent argues that the affected employees' accrual as a VSE is not of importance. Rather, the conversion and accrual post-promotion is the key issue. DP World argues that the amount of personal leave accrued as a VSE in an hourly basis on their calculation basis is the same post conversion. Mr Pollock argued in oral submissions:

My learned friend offers nothing resembling a competing calculation, so the debate of what the treatment of leave might be with respect to their time as VSEs really is a distraction. The question is how do you treat that balance upon their promotion given the different roster structure that applies to FSEs, and the different, we would say, the different number of ordinary hours?

[35] In James Cook University v Ridd [2020] FCAFC 123, the Full Court of the Federal Court summarised the principles of interpretation of an enterprise agreement:

(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(ii) 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".

(iii) 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".

(iv) Context may include "... ideas that gave rise to an expression in a document from which it has been taken".

(v) 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..."

(vi) A generous construction is preferred over a strictly literal approach, but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties".

(vii) 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.[16]

Can the MUA's construction of "day" can be applied?

[36] I note the MUA and DP World declined to submit a statement of agreed facts. Neither party sought to lead extrinsic evidence of the effect, if any, which the Mondelez decision had on bargaining for the 2020 and 2024 Agreement. I have no evidence before me to suggest that the High Court's interpretation of the meaning of "day" was discussed at all during bargaining.

[37] The MUA contends that day can be given its plain and ordinary meaning.[17] Only one shift can be worked per 24-hour period. Consequently, 13 days personal leave entitles employees to 13 absences from rostered shifts per year.

[38] The MUA notes that an entitlement to 13 days is greater than the NES provision of 10 days. The MUA further submits that the entitlement was won through bargaining and that "[t]he industrial might of the MUA is an objective contextual fact known to the relevant parties that supports this assertion."[18] The MUA submits that the parties did not intend to incorporate "esoteric judicial considerations" into their agreement.

[39] DP World submits that applying the MUA's argument for the meaning of "day" would create inequalities, referring to the majority judgment in Mondelez. Their Honours were concerned with the inequality that would arise if employees with longer shift lengths accrued more personal leave than their colleagues who worked shorter shifts, but who had the same weekly ordinary hours. I do not regard that concern is not wholly apt to this dispute. The MUA states that both the maintenance VSEs and FSEs work 12-hour shifts at the Brisbane terminal, though there is debate about what proportion of those shifts are ordinary hours.

[40] I accept, as a general proposition, that when parties are sitting at the bargaining table, they are not necessarily thinking of "esoteric judicial considerations". Further, so long as the Agreement passes BOOT and the agreement term is not unlawful, the bargaining representatives can negotiate for a term which is contrary to the approach followed in Mondelez. The question is not whether the meaning of "day" in this Agreement can be contrary to the "notional day" construction in Mondelez, but whether a definition of day other than that of a notional day can be sensibly applied to this Agreement.

[41] There is a compelling simplicity to the Applicant's argument that "a day is day". However, that argument also throws up issues and anomalies. For example, what happens to an employee's leave balance if an employee takes personal leave for only part of a shift to attend a medical appointment? Is a portion of a 24-hour period deducted or is a portion of the employee's shift length deducted? Although clause 23.4 of the 2024 Agreement refers to payment for each "day" of leave, there appears to me to be nothing under the Agreement to prevent an employee using their personal leave entitlements for only part of a day. Further, the MUA's argument creates uncertainty. If personal leave accrued in advance like under the 2020 Agreement, there would be no issue as each employee would know how much leave they had accumulated for the year at any given day. But where personal leave accrues progressively, expressing personal leave as an "entitlement to 13 absences from a rostered shift" means there is no explanation as to how the leave accrues throughout the year. This is not just a payroll issue. It is important for employees to know what their personal leave balance throughout the year, as they may need to take personal leave unexpectedly.

[42] I accept the MUA's argument that the union and employer are sophisticated industrial agents and can create disparities between entitlements of employees of different rostering patterns. However, when converting from one category or classification to another, the amount of personal leave that was accrued by an individual under one set of work conditions needs to convert to the same effective number of days for a different set of working conditions to ensure the employee's entitlements are consistent. Otherwise, the employee may either lose full benefit of their entitlements or receive a windfall gain. The method to achieve this consistency is to use ordinary hours. The adoption of a notional day construction allows for the consistent application of personal leave across a variety of work patterns. In Mondelez, the Court was alive to the variations in working patterns in the workforce and particularly the use of extended hours of work with 10-hour and 12-hour shifts.

[43] Without documentary evidence before me of historical practices at the terminal, I am hesitant to accept any argument that "day" has always been understood to be a day. Neither does the context of "Day", defined under clause 7 of the 2024 Agreement to mean a 24-hour period, assist the Applicant where the defined term is not deployed in clause 23.

[44] I find that the MUA's argument for the meaning of "day" creates uncertainty and cannot be sensibly applied to this Agreement.

Does Clause 23 of the 2024 Agreement "cover the field"?

[45] It is appropriate to ask whether Clause 23 of the 2024 Agreement covers the field and whether the 2024 Agreement and the NES can be "sensibly and fairly read together". If it is the case that clause 23 conclusively states the matters pertaining to personal leave under the Agreement, then it would not be appropriate to look to the Award and the NES.

[46] The parties both referred to the Full Bench decision in MUA v DP World for the test to be applied to determine whether there is an inconsistency between an Agreement and an Award. I note the 2024 Agreement is one of the agreements which was subject to the appeal in MUA v DP World. The clauses referred to by the Full Bench are therefore the same clauses which I am considering in this matter. In that matter, the Full Bench held:

[74] The MUA submits that inconsistency arises for the purposes of clause 5.2 only if a provision of the Agreement and a provision of the Award cannot sensibly or fairly be read together or if the terms of the Agreement demonstrate an intent to cover a subject-matter to the exclusion of the Award.

[75] Where the terms of a modern award (or any other instrument for that matter) are incorporated into an enterprise agreement subject to a test of inconsistency, whether such inconsistency arises will turn on the meaning of that term in the context of, and for the purposes of, the relevant agreement. As such, there are limitations in the extent to which it is possible to make general pronouncements about the approach to be adopted when reconciling the terms of the two instruments. It is sufficient, for present purposes, to say that we accept the submissions of the MUA as to the approach required to detecting inconsistency for the purposes of clause 5.2 of the Agreements.

[76] DP World accepted that clause 5.1 has the effect of incorporating the terms of the Award into the Agreements subject to clause 5.2. The incorporation of the Award into the Agreements means that the terms of Award are terms of the Agreements. The Award does not directly apply to employees covered by the Agreements when the Agreements are in operation and has no independent force.24 The terms of the Award apply to employees only by reason of incorporation into and as terms of the Agreements. This is not a situation in which one instrument has presumptively paramount operation. The rights and obligations all have the same source, namely, the Agreements as given legal effect by the Act.

[77] Clause 5.1 dictates that the Agreements be read 'in conjunction with' the Award. That language is consistent with the clause examined in Maribyrnong City Council. Consistent with the reasoning of Wheelahan J, that mandate tells against construing terms of the Award which merely qualify terms of the Agreement as being inconsistent for the purposes of clause 5.2. The appropriate test in the context of clause 5.2 is to ask whether the Agreement cannot be sensibly or fairly read together with a provision of the Award. That may include a circumstance in which a term of the Agreements evinces an intention to cover a particular subject matter to the exclusion of any provision of the Award.

[47] Mr O'Sullivan pointed out that Clause 23 is very detailed. I agree. There are eight subclauses covering matters from when personal leave can be taken, the amount of personal leave an employee is entitled to, payment for personal leave and "gifting" of personal leave to another employee.

[48] However, I am not satisfied that clause 23 demonstrates an intention to cover the subject matter of personal leave to the exclusion of the Award. Nothing is revealed in the eight subclauses of clause 23 that indicates that the authors turned their mind to the basis for the accrual. Clause 23 primarily explains how personal leave is paid. Payment is only one side of the equation.

[49] To say that accrual is "progressive" does not explain how the personal leave accrual is calculated over time. For example, one could imagine a situation where each employee was credited one day of personal leave per 4 weeks. That would amount to 13 days over 52 weeks. If the accrual were based on notional ordinary hours, or actual hours worked, that would also be a method of calculating progressive leave accrual. The basis for accrual is important as it allows the employee to know at any one time what their entitlements are.

[50] Clause 23.1 states that the clause is to be read in conjunction with clause 25 of the Award. The Agreement can be read sensibly and fairly with the Award. The basis of accrual specified in s.96 of the Act applies.

What are the ordinary hours of VSEs and FSEs for the purposes of accruals?

[51] Perhaps the most complex issue to be determined is what are the ordinary hours of VSEs and FSEs for the purposes of calculating personal leave accrual based on ordinary hours. In considering this issue, I am concerned with the ordinary hours of the affected employees in this dispute, who are maintenance employees. As VSEs, the affected employees worked in the general maintenance team and now as FSEs, they work in the day maintenance team.

[52] It is necessary to provide further context regarding the VSE and FSE positions. As noted by the Respondent, in the stevedoring industry it is common for an employee to be promoted from casual to guaranteed salary employee, to fixed salary employee. These three categories are reflected in the Agreement as Supplementary, VSE and FSE.

[53] Although VSEs are permanent employees under the Agreement, their availability is akin to that of a casual. Clause 18.1.2 states: "A VSE will be available for totally irregular allocation". Clause 18.1.3 states: "A VSE must be reasonably available to meet the VSE Minimum Salary and business requirements." The Agreement provides that Supplementary Employees (casual employees) will only be engaged once other labour resources are exhausted.[19] If a VSE is not reasonably available to meet the business requirements, they may be ineligible received the VSE minimum salary.

[54] In 2015, as part of the 4 Yearly Review of the Stevedoring Award,[20] a submission was made by various stevedoring employers to increase the weekly ordinary hours under the Stevedoring Award to 38 rather than 35. The Full Bench's summary of the submissions and history of the Award provides useful context when considering the weekly ordinary hours under this Agreement:

[49] The Stevedoring Employers (comprised of the Qube Group and the DP World Group) propose to amend the current "Ordinary hours of work and rostering" sub-clause 17.1 so that the ordinary hours of work are increased from an average of 35 per week to 38. References to 35 ordinary hours per week would also need to be amended in the current "Shiftwork" sub-clause 18.10 and the current "Rostering arrangements" sub-clause 18.14.

[50] The Stevedoring Employers note that this variation would also require consequential changes to other provisions of the Award which are currently premised on full time employees working 35 ordinary hours per week. This includes clauses which relate to normal shift work and maximum working hours and are dealt with below, in particular clauses 18.1, 18.2, 18.12, 19.2and 19.3.

[51] The Stevedoring Employers contend that this provision, in conjunction with "Overtime rates" sub-clause 19.1, has the effect that any hours worked by a stevedore in excess of an average of 35 hours per week are paid at overtime rates. The Stevedoring Employers submit that a week consisting of a maximum of 35 ordinary hours is out of step with most other moderns awards, and that this includes other industries that operate 24 hours a day and seven days a week.

[52] There are 122 modern awards. 111 provide for 38 ordinary hours per week. Five provide for 35 hours in all cases and one provides for 35 hours for a sub-set of employees. The others provide for a number between 35 and 38.

[53] The 35-hour week was introduced into the Waterside Workers Award in 1972 by consent between the Waterside Workers Federation of Australia and the employer association representing stevedore employers. The variations were opposed by the Commonwealth Government but approved by the Commonwealth Conciliation and Arbitration Commission.

[54] The Stevedoring Employers submit that the change was highly contingent on the circumstances at the time and those circumstances have largely ceased to exist. They submit that the nature of work is similar in a general sense to work in the manufacturing, construction, mining, transport and storage industries, and that stevedoring work is not necessarily of greater intensity than work in those industries.

[55] Evidence was led from a shift work expert, Mr James Huemmer on comparable industries in relation to hours of work, rostering, patterns of work, overtime and work on weekends and public holidays. The rostering and work allocation practices of stevedoring employers were explained by Mr Greg Nugent (Qube) and Mr Greg Muscat (DP World). It is apparent from this evidence that the rostering arrangements in the stevedoring industry provide a unique level of flexibility for employers by allowing them, on the day before the shift, to confirm whether work is required and nominate the shift starting time. A corresponding consequence of this flexibility is a significant inconvenience for employees who, for the most part, cannot plan the precise work, recreational activities and other responsibilities more than a day in advance.

[56] The MUA, the AWU and the TWU strongly oppose this proposed variation. The MUA contends that the adoption of a 35 hour week was a consent position that became standard in the 1960s and 1970s as a consequence of industrial negotiations that took place between the Association of Employers of Waterside Labour and the Waterside Workers' Federation and that those negotiations had regard to the unique circumstances of continuing rapid technological change in this period. The MUA submits that distinct operations of the stevedoring industry continue to exist today and therefore the concept of a 35 hour week remains relevant. The Patrick Group does not oppose this proposed variation to the Award but otherwise made no substantive submissions in support of this variation. The Ai Group supports the variation.

[65] I am not satisfied that the Stevedoring Employers have established a sufficient case for the variation or that the variation is necessary to meet the modern awards objective. A 35 hour week is present in some awards for the similar historical reasons as the stevedoring industry. There is nothing inherently contrary to the modern awards objective in the continuation of this prescription. Further the highly unusual nature of shift allocation systems for waterfront labour warrant a swings and roundabout approach to award entitlements. Greater demands on employees that contribute to a more intrusive availability requirement than in most other areas of employment warrant a more generous ordinary hours prescription. This provides compensation for the inconvenience of the rostering arrangements in the stevedoring industry. The allocation practices arising from the need for flexible labour requirements obviously contributed to the unique structure of the award hours provisions and remain relevant today. I would not grant the variation sought

[55] The 2024 Agreement does not define "ordinary hours".

[56] Part B of the 2024 Agreement sets out the rosters which apply to maintenance employees:

1.4 General Maintenance Roster - 12 Hour Shifts

In addition to clause 1.7 below, shift commencement and finishing times may be varied by agreement.

(b) Panels will be made up of 1 Tradesperson per panel selected by the Company based on skill and experience.

Employees engaged under this roster can work overtime as detailed in clause 1.1.4.

These do not apply to employees engaged under this roster.

These do not apply to employees engaged under this roster

(b) A maximum of 4 x 12 hour shifts, as nominated by management, to be worked day shift Monday to Sunday.

In addition to clause 1.7 below, shift commencement and finishing times may be varied by agreement.

(b) 50% of employees on the Dayshift maintenance roster will be allocated to the first part of the week and the other will be allocated to the later end of the week. Where there are major works or breakdowns the company can consult with employees and reallocate employees to be able to complete major works or breakdown packages.

(c) Any changes based on specific maintenance requirements which require roster change will require direct contact with the employees affected;

(d) If any Public Holiday or Closed Port falls on a weekend, then no DIL will apply.

(e) A maximum of 1 weekend shift must be worked per 8 week cycle, any additional weekend shifts worked will be worked as overtime; and

(f) Employees engaged under this roster may have meal breaks staggered with the other maintenance roster employees to provide continuous coverage.

1.5.4 Overtime Employees engaged under this roster can work overtime as detailed in clause 1.1.4.

These do not apply to employees engaged under this roster.

These do not apply to employees engaged under this roster

[57] Mr O'Sullivan explained the day maintenance roster as follows during hearing:

MR O'SULLIVAN: And this is the day maintenance roster. Deputy President, as I said from the top, the employees as FSEs work apart - work this day maintenance roster. You will see that there are an average of 42 hours per week. Your Honour will also see that this roster contains a RO week, or a rostered off week. How this cycle functions is the day maintenance FSEs are paid the equivalent of 42 hours per week, but they work 48 hours across the first seven and get the eighth off, so six hours is, in effect, put into a bank.

[58] The Respondent contends that clauses 14.2 and 11.2 of the 2024 Agreement state plainly that VSEs have 35 ordinary hours per week.

14.1 FSE ordinary hours of work are as per the relevant roster in Part B. FSE hours worked in excess of the roster will be paid at overtime provisions in accordance with the Award and as set out at clause 15.

14.2 VSE's and Supplementaries hours of work shall be based upon the provisions of the Stevedoring Award (35 ordinary hours per week) and as specified in the relevant section of this Agreement

11.1 Employee classifications shall be based upon the relevant provisions of the Stevedoring Award.

11.2 Clause 11 rates of pay are based on a 35 hour week. The following rates are for each classification:

11.3 Clause 11 hourly rates of pay are as follows:

Now, what possible work are the plain words of 35 ordinary hours per week in clause 14.2, defining that for VSEs, and in 11.2, that those rates are based on a 35‑hour week where those rates are directly - they are the rates that these employees are paid above the minimum salary? How it can sensibly be contended that these employees - that this instrument doesn't express these employees as having 35 ordinary hours a week is not at all clear, and the suggestion that it's some roundabout way of referring back to some award provision, with respect, it just doesn't withstand scrutiny. The words are plainly what they mean and what they say.

[62] MUA argues that whilst the 2024 Agreement sets out an hourly rate, previously agreements did not. The MUA submits that the reference to 35 ordinary hours is simply to provide a divisor to derive the hourly rate from the specified weekly rate. Further, the MUA argues that the parenthetical reference to 35 ordinary hours in clause 14.2 refers to the weekly rates specified under the Award. Clause 16.1 of the Award reads:

16.1 An employer must pay employees the following minimum rates for ordinary

...1 Minimum hourly rate is based on a 35 hour week.

[63] I am cautious about applying a literal approach to interpreting the number of ordinary hours. I am cautious because there are issues with the drafting of the Agreement. The key term of "ordinary hours" is not defined. The Agreement vacillates between conflating ordinary hours with regular hours and with hours for which the employee receives ordinary time pay. Clause 14.1 states that FSE ordinary hours are as per the rosters in Part B but when one reads Part B, "ordinary hours" are not clearly specified, but instead "average hours" are. These terms do not have the same ordinary meaning.

[64] I note the comments of the Full Bench in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Manildra Energy Australia Pty Ltd [2025] FWCFB 149:

[44] In this matter, the task of construction is hampered by the language of the Agreement. The critical terms of the Agreement at issue are poorly drafted. The Agreement does not define key terms that are used, and the language used throughout the Agreement is far from consistent. Although it is commonly appropriate to commence the task of construction by an examination of the ordinary meaning of the language used in the relevant parts of an instrument, these features of the Agreement make it difficult to rely upon a literal reading of individual clauses. This is a case in which an overly literal reading of the individual clauses is liable to mislead as to their proper interpretation. The task is also complicated by the fact that we have concluded that the position advanced by neither of the parties at first instance is correct and tended to distract from the correct construction. Furthermore, no interpretation produces an outcome that is entirely satisfactory or free from incongruities or inconsistencies.

[65] Similarly, I find that neither position put forward by the parties is entirely satisfactory.

[66] In this agreement, ordinary hours should be construed to mean the span of hours for which the employees receive ordinary time pay. It does not refer to "ordinary" in the sense of regular. That would be an incongruous interpretation in an agreement which provides for variable roster patterns and hours. Weekly ordinary hours are the span of hours in a week for which the employee will receive ordinary time pay. Work performed outside the ordinary hours should attract overtime.

[67] The phrase "[c]lause 11 rates of pay are based on a 35 hour week", when read in context with the table following, appears to be signalling how the weekly rates of pay were calculated. This construction is supported by previous versions of the Agreement in which there was no table of hourly pay rates, including the 2020 Agreement and 2016 Agreement. The reference to 35 hours exists for the purpose of calculating hourly pay rates. I accept the Applicant's argument that clause 11.2 should not be construed to mean that each employee literally has 35 ordinary hours per week.

[68] Clause 14.2 states: "VSE's and Supplementaries hours of work shall be based upon the provisions of the Stevedoring Award (35 ordinary hours per week) and as specified in the relevant section of this Agreement." The reference to the Stevedoring Award creates an ambiguity in this context. The Award does not specify that guaranteed wage employees or casual employees (the equivalent of VSEs and Supplementary employees) have 35 ordinary hours per week. Instead, the Award specifically notes that "full time employees" have an average of 35 ordinary hours per week, and guaranteed wage employees and casual employees are noted to have different ordinary hours. Full-time is one of three distinct categories of employment under clause 8.1 of the Award, with the other two categories being guaranteed wage employees or casual employees. Clause 13 of the Award states:

(a) The ordinary hours of work for a full-time employee are an average of

(b) The ordinary hours of work for a guaranteed wage or casual employee

will be in accordance with clause 10 - Guaranteed wage employees and clause 11 - Casual employees.

10.1 A guaranteed wage employee is an employee who is guaranteed a minimum number or an average number of full shifts each week, or instead of that engagement, is provided the equivalent payment.

10.2 For the purposes of leave accruals under the NES, a guaranteed wage employee's ordinary hours of work will be deemed to be the hours actually worked by the employee over the qualifying period for the leave.

[70] Clause 14.2 should not be construed as being a reference to VSEs having 35 ordinary hours "based upon the provisions of the Stevedoring Award". That interpretation would not make sense because the Award only defines "full-time" employees as having 35 ordinary hours per week.

[71] The other possibility is that the reference to 35 ordinary hours per week is a reference to provisions of the Award which provide that where 12-hour shifts are introduced, the ordinary hours will not "exceed an average of 35 hours per week."[21] However, this still does not mean that the VSEs ordinary hours are 35 per week. Rather, it sets an upper limit for the ordinary hours. That is, the VSEs ordinary hours could be less than 35 per week.

[72] The drafting of clause 14.2 is deficient. However, I find that the explanation which makes the most sense is the one proposed by the MUA. In the context of the Agreement and the Award, the reference to 35 ordinary hours in clause 14.2 is a reference to the weekly Award rates of pay which are calculated using 35 hours.

[73] The MUA notes clause 14.2 refers to VSE hours being "as specified in the relevant section of this Agreement." Clause 18.2.2, which sets out the hours of VSEs, does not specify ordinary hours of VSEs, merely the shift length. Clause 18.4.5 notes that VSEs receive ordinary time pay for each hour of work they perform on the roster. Hours of work outside rostered hours attract overtime. The VSEs also receive premium payments in addition to ordinary time pay for performing work at certain times. The MUA submitted that VSEs at the Brisbane Terminal have not historically received overtime.

[74] The reference to the Stevedoring Award in clause 14.2 of the does not support a construction that VSEs under this Agreement have 35 ordinary hours per week, and in fact, the Stevedoring Award reference hinders that construction. I find that VSEs do not have 35 ordinary hours per week. Rather, their ordinary hours for the purposes of accruals are the hours for which they are rostered to work. This is consistent with Clause 18 of the Agreement and with Clause 10 of the Award. It is also consistent with the fact that VSEs are remunerated by reference to a minimum salary - their salary is not, in that sense, tied to ordinary hours. However, where the VSE works 12-hour shifts and is rostered to work for more than 35 hours per week, the hours in excess of 35 are overtime and do not count for the purposes of personal leave accruals.

[75] In relation to clause 10 of the Award, which I consider is applicable as context here, I consider the reference to "the hours actually worked by the employee" to be distinguishing the actual hours of work performed from the minimum salary hours. The rationale for this is tolerably clear - guaranteed salary employees accrue personal leave according to their actual hours of work, rather than for hours they may or may not have worked.

[76] Given I have accepted the use of the notional day construction applies for the purposes of personal leave accrual under the Agreement, the notional day should still be used to calculate a VSE's ordinary hours.

[77] If the approach from the High Court in Mondelez is applied, then the notional day is equivalent to one-fifth of the employee's ordinary hours per week, or one-tenth of the employee's ordinary working hours over a fortnight. One could question whether the five-day working week assumption is appropriate for shift workers, but given that is the approach used by the High Court, based on the Explanatory Memorandum of the Fair Work Bill, it is the approach I will take. It also coheres with the payment of personal leave for VSEs, which is for one-fifth of the Minimum Weekly Salary.

[78] If, for example, Mr Serra was rostered to work, and did work, 72 hours in a fortnight, by working three 12-hour shifts per week over two weeks, 70 hours would be ordinary hours, and the notional day which applies to him would be 7 hours. He would accrue personal leave for that fortnight in accordance with the following formula:

91 hours / 26 fortnights = 3.5 hours of personal leave accrued

[79] If Mr Serra had an existing leave balance of 100 hours, the additional 3 hours would be applied and the divisor of 7 would be used to arrive at a figure of 14.71 days of personal leave.

[80] If, the following fortnight, Mr Serra was rostered to work, and did work, 48 hours over two 12-hour shifts per week over two weeks, then the applicable notional day would be 4.8 hours. He would accrue 2.4 hours of personal leave using the above formula. The personal leave balance would be 105.4 hours.

[81] Hours worked outside of the rostered hours are paid as overtime and do not count for personal leave accruals.

[82] 13 days equates to 2.6 working weeks. 13 days of personal leave equates to 1/20 of an employee's ordinary hours over a period of a year as opposed to 1/26 of those hours for a personal leave entitlement of 10 days.

[83] There is a question over whether the notional day should be deducted when a VSE takes personal leave. In ASU v Hobson Bay Council [2014] FWCFB 2823 at [41] the Full Bench found that the words "without loss of pay" means personal leave is taken using the actual hours of an employee's shift length, whereas it accrues according to ordinary hours. However, I consider that clause 23 in this matter is distinguishable. Where a Maintenance VSE takes personal leave, they are paid 1/5 of the Minimum Weekly Salary which equates to approximately 8.67 hours at Maintenance VSE ordinary time rates of pay. This is less than the VSE minimum shift length of 10 hours. There will therefore always be a "loss of pay" when a VSE takes personal leave. A day equivalent to the notional day should be deducted when the VSE takes a period of personal leave.

[84] In relation to the FSEs, I note the 2024, 2020 and 2016 Agreement have provided that the Day Maintenance Roster has "Average 42 hours per week". Those shifts are worked over the span of five days, with one weekend to be worked over the 8-week roster. A maximum of four 12-hour shifts can be worked between Monday to Sunday. I note FSEs are paid a rolled-in rate which includes shift premiums.

[85] The MUA submitted that FSEs have 42 average hours per week. The Respondent submitted that FSEs have an average of 42 hours of work per week and 35 ordinary hours per week.[22]

[86] As noted above, the Stevedoring Award has historically provided for a 35 ordinary hour working week for full time employees. This is a feature of the stevedoring industry which has existed since 1972.

[87] Clause 14.1 of the Agreement states: "FSE ordinary hours of work are as per the relevant roster in Part B. FSE hours worked in excess of the roster will be paid at overtime provisions in accordance with the Award and as set out at clause 15."

14.8.1 12- hour shifts may be introduced only when agreed between the Company and the Union or a majority of Employees at the workplace in order to accommodate fluctuating work requirements such as in small ports. Where 12 hour shifts are introduced, the ordinary hours must not exceed an average of 35 hours per week. 12- hour shifts are inclusive of meal breaks and rest periods.

[89] The wording of the Agreement is ambiguous in specifying average hours rather than ordinary hours. Average hours could conceivably include overtime whereas ordinary hours do not.

[90] The reference to "Average 42 hours per week" when read in context with clause 14.8.1, should be construed to be as a reference to FSEs having 42 average hours per week of which 35 are ordinary hours.

[91] When a Maintenance FSE takes personal leave, they should, in view, have the actual length of their rostered shift deducted from their leave balance in accordance with clause 23.6.1(c) of the 2024 Agreement. They should also be paid for the length of their rostered shift. Clause 23.6.1(c) notes payment for personal leave cashing out is at "at least at the rate the Employee would have received if the leave had been taken." The clause goes on to define the hours for which the employee should be paid. Therefore, by implication, 23.6.1(c) defines the hours for which the FSE should be paid when they take personal leave.

[92] I note the MUA takes issue with expressing the personal leave entitlement in hours, as the Respondent has done. The MUA is correct that as the leave entitlement is "13 days", then it needs to be expressed to employees in days. This is especially so given clause 23.6 of the Agreement triggers a right to make an application in the month of July to cash out unused personal leave once the employee has accrued in excess of 28 days.

[93] However, there is nothing objectionable in using an hourly calculation for the purposes of arriving at a figure which is intended to give effect to an entitlement of 13 days of personal leave. Hours can be converted to days using the notional day divisor.

[94] I agree with the Respondent that the divisor of 7 for FSEs is correct.

[95] Insofar as the MUA argues that there was a unilateral reduction in personal leave entitlements upon promotion to FSE, I reject that argument. The notional day was changed to account for a change in ordinary hours. I find no error in the use of the notional day by the Respondent.

[96] However, I do not accept the submission that the ordinary weekly hours of VSEs are 35 hours per week. The ordinary hours of VSEs are their actual hours worked but weekly hours in excess of 35 hours are overtime and do not count towards personal leave. Therefore, the accrual rate of 91 hours per year is not correct. The actual hours worked must be examined to determine the correct accrual.

[97] I favour the approach adopted by the Respondent to use a notional hours approach to preserve the amount of hours accrued and then apply the relevant ordinary hours. The Employee effectively continues to maintain the accrued amount of personal leave albeit in a transformed amount to account for the change in ordinary hours.

[98] My answer to the question for arbitration is as follows:

During the period where the affected employees were VSEs, their accrued personal leave entitlements in one year would equate to one-twentieth of the VSE's rostered hours in a year provided that hours worked in excess of 35 hours in a week are overtime and are not counted for personal leave accruals; and

Once the affected employees were promoted to FSEs, they accrue 91 hours of personal leave in a year or 3.5 hours per fortnight.

To determine the exact leave balance which applies, further evidence of the actual hours of work of each affected employee is required.

[1] Statement of Emma Higginbottom dated 12 May 2025 [6].

[2] I understand from the Respondent's submissions that Brett Ryan is no longer employed at DP World Brisbane. However, for the purposes of this decision, he is noted as an affected employee.

[3] Clauses 7.1 and 8.1 of the 2024 Agreement.

[11] Emma Higginbottom Statement 12 May 2025 [28]

Construction, Forestry and Maritime Employees Union v DP World Brisbane Pty Ltd [2025] FWC 2150

At a glance

Court

Decision date

Source

Judgment (209 paragraphs)

Construction, Forestry and Maritime Employees Union v DP World Brisbane Pty Ltd [2025] FWC 2150 (23 September 2025)

Parties

Legislation Cited (1)

Cases Cited (1)