Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd

1. The appeal is allowed.
2. The order of the primary judge dismissing the application is set aside.
3. The proceeding be remitted for further determination by the primary judge in accordance with the Full Court's reasons. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 Section 50 of the Fair Work Act 2009 (Cth) ("FW Act") provides that "[a] person must not contravene a term of an enterprise agreement". The Hay Point Services Pty Ltd Enterprise Agreement 2013 ("Agreement") is an enterprise agreement made and approved pursuant to the provisions of Pt 2-4 of the FW Act and an "enterprise agreement" within the meaning of s 50. The Agreement contains a clause dealing with overtime work which includes the following subclause: 34.1 Reasonable Overtime HPS may require an employee to work reasonable overtime and the employee shall work such overtime as required. 2 Before the primary judge, the appellant ("CFMMEU") alleged that by implementing a new roster, the effect of which was to require employees to work 455 hours of overtime per year or 8.7 hours of overtime per week, the respondent ("HPS") contravened, and continues to contravene, cl 34.1 of the Agreement. 3 The primary judge dismissed the CFMMEU's application on the basis of a threshold question raised by HPS. Her Honour found that cl 34.1 was not a provision which can be "contravened" by HPS for the purposes of s 50 of the FW Act (at [29]). That was because her Honour found that cl 34.1 did not impose any obligation on HPS. 4 That the primary judge erred in adopting that construction of cl 34.1 is the subject of the first and second grounds of the CFMMEU's appeal. For the reasons that will emerge, that is the only issue that we need to determine. 5 Before turning to the primary judge's reasons, it is convenient to outline other relevant clauses of the Agreement. Clause 6.1 of the Agreement deals with types of employment and provides that full-time employees "are engaged for a maximum of 35 ordinary hours per week, averaged over the work cycle of the area concerned". Clause 13.1 also deals with ordinary hours of work and relevantly provides: 13.1 Ordinary Hours (a) Ordinary hours of work for employees subject to this Agreement will be worked in accordance with defined shift arrangements. (b) The shift arrangements operating under this Agreement provide for hours of work up to a maximum of 35 ordinary hours per week, to be averaged over a five (5) week cycle. (c) Any change to ordinary hours of work and shift arrangements will be implemented in accordance with Clause 13.2 of the Agreement. Clause 5 defines "reasonable overtime" as follows: "Reasonable Overtime" - for the purposes of this Agreement 104 hours overtime in a year is generally considered reasonable. This does not infer that 104 hours will be available to every employee, nor does it infer that each employee must work 104 hours of overtime 6 The primary judge determined whether cl 34.1 is capable of being contravened by HPS by reference to textual considerations. Her Honour observed the use of the verb "may" in cl 34.1 in relation to HPS and contrasted that with the use of the verb "shall" in relation to an employee. Her Honour appears to have been driven to her preferred construction because the language of obligation encompassed by the word "shall" was only used in relation to an employee and not in relation to HPS. At [30] her Honour said that it was plain that the word "may" in cl 34.1 "means no more than 'has permission to'" and that cl 34.1 merely granted an entitlement to HPS without imposing any obligation upon it. This approach is reflected in the following observation made at [36]: To that extent the fact that the parties to the [Agreement] agreed on the use of the word "may" in the context of cl 34.1 is important in identifying the entitlements and obligations conferred by that clause, and where such entitlements and obligations lie. 7 Her Honour continued at [37] (emphasis in original): Finally, cl 34.1 does not provide that HPS "may not" require an employee to work overtime unless that overtime is reasonable. The submission of HPS that the CFMEU's reading of the clause turns the clause "on its head" is correct. It does not follow from the existence of a mere entitlement to require employees to work reasonable overtime that there is a prohibition on requiring employees to work overtime that is at variance with the relevant standard. Those two points do not logically nor necessarily correlate.