[2019] FWC 2279

Fair Work Act 2009

Section 739 - Application to deal with a dispute

Genesee & Wyoming Australia Pty Ltd T/A Genesee & Wyoming Australia

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Dispute about matters arising under the enterprise agreement and the NES [s186(6)]

[1] This Statement is issued at the request of the parties to these proceedings.

[2] On 7 November 2018 a dispute notification filed in the Fair Work Commission (the Commission) under section 739 of the Fair Work Act 2009 (the FW Act) by Genesee & Wyoming Australia Pty Ltd (the employer). The employer's application was amended by a substituted application dated 29 January 2019.

[3] The Respondent to the dispute is the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union South Australian Branch (AMWU). The AMWU is an employee organisation covered by the Agreement.

[4] The dispute concerns the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2016 (the Agreement) and in particular the meaning of 'ordinary hours' in clause 19 of the Agreement and the meaning of 'extended hours' in clause 21 of the Agreement.

[5] The employer's application was made to the Commission under the auspices of clause 41.6 of the Agreement (Dispute Resolution Procedure). It was the subject of conciliation in the Commission on 10 December 2018. Conciliation was conducted concurrently with a related (but not identical) application by the AMWU.[1] Conciliation resolved neither application but this matter has subsequently resolved.

[6] By decision dated 27 November 2018 I granted the employer permission to be represented by a legal practitioner.[2]

[7] On 11 December 2018 I issued directions for the arbitration of both applications. Hearing by private arbitration was listed for 18 March 2019. I conducted a further directions hearing on 6 February 2019 during which I granted leave to the employer to amend its application.

[8] In advance of private arbitration, written submissions were filed both by the employer (12 February 2019) and by the AMWU (5 March 2019).

[9] At the hearing of this matter the Commission was advised that agreement had been reached between Genesee & Wyoming Australia Pty Ltd and the AMWU on the proper interpretation of the disputed words in clauses 19 and 21 of the Agreement (agreement was not reached on the AMWU application).

[10] The Commission agreed to issue a Statement identifying the matters in issue and to record the agreement reached. I am satisfied that doing so may assist the conduct of industrial relations in this business and with the future application of the Agreement insofar as the meaning of 'ordinary hours' and 'extended hours' are concerned.

[11] The Commission congratulates the parties on reaching this resolution. However, neither this Statement nor the agreed resolution constitute a decision of the Commission in respect of which independent judgment on the interpretation of the Agreement has been exercised. Nor is the resolution an agreement between persons other than the parties to this dispute. Employees and other employee organisations covered by the Agreement are encouraged to make reference to this resolution, but are not a party to it.

[12] In essence, the issues arising on the dispute notification filed by the employer concerned ordinary hours of work and overtime (described as 'extended hours'). In the Agreement, the term 'ordinary hours' is variously expressed by related terms including 'ordinary day work or shift work hours' (clause 19.1.4), 'ordinary rostered hours' (clause 19.5) and 'ordinary rostered shift hours' (clause 20.8.1). The term 'extended hours' is also referred to as 'extended time' in clause 21.

[13] These issues in dispute were distilled into three questions requiring resolution.

[14] The employer's written submissions, supported by a witness statement from an officer of Genesee & Wyoming Pty Ltd, provided a response to each of these questions. The AMWU's written submission expressed the following agreed answers to these three questions:

What are 'ordinary hours' for the purposes of the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2016?

Ordinary hours are worked within the relevant spread of hours for the shift, and must not exceed 12 hours per day, 6 shifts per week, 60 hours per week, an average of 38 hours per week, or 152 hours per 28 day period. Ordinary hours are worked Monday to Saturday, or Sunday by agreement.

When are 'extended hours' rates payable under the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2016?

Extended hours rates are payable for time worked outside ordinary hours.

In light of the answers to Questions 1 and 2 above, which hours constitute "ordinary hours of work" for the purposes of section 6 of the Superannuation Guarantee (Administration) Act 1992 (Cth) (the superannuation guarantee legislation is referenced in clause 17.2 of the Agreement)?

Superannuation is payable on all ordinary hours, including agreed Sunday hours.

[15] The parties advised the Commission that, having reached a resolution, they intended to apply the agreed interpretation of the relevant clauses of the Agreement to persons employed under its terms.

[16] The parties also noted that should any dispute arise in implementation they would have recourse to the Dispute Resolution Procedure in clause 41 of the Agreement.

[17] For the sake of completeness, I note that the Commission has proceeded to determine the separate dispute under the Agreement concerning the meaning of 'continuous shift worker' (C2018/5956)[3]. That matter does not impede implementation of the agreed resolution.

A. Pollock, with permission, for Genesee & Wyoming Australia Pty Ltd

[1] C2018/5956 filed 24 October 2018 and conciliated on 5 November 2018 and 10 December 2018

[2] Decision [2018] FWC 7204

[3] [2019] FWC 2502

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