1. applying the Award alongside the Agreement would 'alter, impair, or detract' from the Agreement's operation by removing rights and reducing flexibility, which is contrary to the terms that were expressly negotiated by the parties when bargaining for the Agreement; and

1. while both instruments share a common purpose (ie, providing adequate rest to employees), they achieve it through mechanisms that are fundamentally different and which cannot coexist without rendering relevant Agreement terms meaningless.

[17] It is clear that the Agreement defines shift times by reference to specific start times for each of the 24 hours in a day. This does not align with the Award which defines shifts in blocks of time. I am satisfied that the Agreement reflects an intention to create a complete code for shift classifications.

[18] I am further satisfied that the Agreement provisions concerning minimum breaks demonstrates an intention to cover the field as it is. As submitted by the Respondent, those provisions are precise and measurable, and demonstrate that they were intended to replace, rather than supplement, the Award provisions in these areas.

[19] It is also obvious that the relevant Award and Agreement provisions cannot be complied with simultaneously and that the respective shift definitions are inconsistent.

[20] The inconsistency is clear, that is the Agreement specifically allows for a rostering arrangement that the Award does not. In those circumstances, the Agreement prevails.

[21] I am therefore satisfied that the Respondent is not prohibited from requiring employees who have worked a night shift to work the next succeeding evening shift, subject to meeting the minimum break between shifts. The application is so determined.

K Bond for Construction, Forestry and Maritime Employees Union.

[1] Applicant's Outline of Submissions at para 16.

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