Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about additional annual leave entitlement for shiftworkers - aged care industry - meaning of 'shiftworker'

• [1] The Health Services Union has applied to the Commission to deal with a dispute under section 739 of the Fair Work Act 2009 (Act) with DPG Services Pty Ltd trading as Opal Aged Care (Opal). The dispute is brought under the Opal Aged Care (NSW) Enterprise Agreement 2016 (the Agreement). The Agreement is a single enterprise agreement made by Opal and its employees in New South Wales and the Union is covered by the Agreement.

• [2] The Union and Opal have different views about what the question for determination should be. I characterise the question for determination as this:

"When is an employee a "shiftworker" for the purposes of the entitlement to an additional week's annual leave in clause 34.1(b) of the Agreement?"

• [3] The Union submits that a shiftworker for this purpose is an employee who is rostered to work any of their ordinary hours of work outside the ordinary hours of a day worker ("the day worker span") as defined in clause 23(a) of the Agreement. Opal submits that there is a threshold proportion of hours that must be worked outside the day worker span before a shiftworker becomes entitled to the additional week of annual leave in clause 34.1(b) of the Agreement.

• [4] I do not agree with either contention. An employee is a "shiftworker" for the purposes of the additional week's annual leave in clause 34.1(b) of the Agreement if their weekly or fortnightly roster regularly provides for them to work one or more shifts that fall exclusively outside the span of hours of 6.00am to 6.00pm, Monday to Friday. The mere working of one or more ordinary hours outside the span is not enough.

• [6] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains a dispute settlement term at clause 9. The parties agree that the Commission has jurisdiction to arbitrate the dispute under clause 9 of the Agreement.

• [7] The Agreement operates to the exclusion of the Aged Care Award 2010 (the Award). The interaction of the Agreement and the National Employment Standards (NES) is dealt with in clauses 3.2 and 6 of the Agreement. In clause 3.2, the parties have agreed that "where this agreement refers to an entitlement provided for in the NES, the NES definition applies." Clause 6 of the Agreement provides that "where this Agreement also has provisions regarding matters dealt with under the NES and the provisions in the NES set out in the Act are more favourable to an employee in a particular respect than those provisions, the NES will prevail in that respect and the provisions dealing with that matter in the Agreement will have no effect in respect of that employee. The provisions in the Agreement otherwise apply."

• [8] Ordinary hours of work are dealt with in clause 22 of the Agreement:

(a) The ordinary hours of work will be 38 hours per week, or an average of 38 hours per week worked over 76 hours per fortnight or 152 hours per 4 week period, and will be worked either:

(i) in a period of 28 calendar days of not more than 20 work days in roster cycle;

(ii) in a period of 28 calendar days of not more than 19 work days in a roster cycle, with the twentieth day taken as an accrued paid day off (ADO); or

(iii) The shift length or ordinary hours of work per day will be a maximum of 10 hours exclusive of meal breaks.

(b) The hours of work on any day will be continuous except for meal breaks."

• [9] Clause 23 of the Agreement is headed 'Span of hours' and provides:

(a) The ordinary hours of work for a day worker will be between 6.00 am and 6.00 pm Monday to Friday.

(b) A shiftworker is an employee who is regularly rostered to work their ordinary hours of work outside the ordinary hours of work of a day worker as defined in clause 23(a)."

• [10] Clause 27 of the Agreement deals with rosters. It provides:

(a) Employees will work in accordance with a weekly or fortnightly roster fixed by the employer.

(b) The roster will set out employees' daily ordinary working hours and starting and finishing times and will be displayed in a place conveniently accessible to employees at least fourteen days before the commencement of the roster period.

(c) In the case of nurses 15 minutes handover time will be rostered at each shift change.

(d) It is not obligatory for the employer to display any roster of the ordinary hours of work of casual or relieving staff.

(e) Unless the employer otherwise agrees, an employee desiring a roster change will give seven days' notice except where the employee is ill or in an emergency.

(f) Seven days' notice of a change of roster will be given by the employer to an employee. Except that, a roster may be altered at any time to enable the functions of the facility to be carried out where another employee is absent from work due to illness or in an emergency. Where any such alteration requires an employee working on a day which would otherwise have been the employee's day off_,_ the day off instead will be as mutually arranged.

(g) This clause will not apply where the only change to the roster of a part-time employee is the mutually agreed addition of extra hours to be worked such that the part-time employee still has two rostered days off in that week or four rostered days off in that fortnight, as the case may be."

• [11] Clause 32 of the Agreement deals with shiftwork:

32.1. Employees working afternoon or night shift shall be paid the following percentages in addition to their ordinary rate, for such shift. Provided that employees who work less than 38 hours per week will only be entitled to the additional rates where their shifts commence prior to 6.00am or finish subsequent to 6.00pm.

(a) 10% for afternoon shift commencing after 10:00a.m. and before 1:00p.m.

(b) 12.5% for afternoon shift commencing at or after 1:00p.m. and before 4:00p.m.

(c) 15% for night shift commencing at or after 4:00p.m. and before 4:00a.m.

(d) 10% for night shift commencing at or after 4:00a.m. and before 6:00a.m.

(i) The shift penalties prescribed in this clause will not apply to shiftwork performed by an employee on Saturday, Sunday or public holiday where the extra payment prescribed by clause 29 - Saturday and Sunday work and clause 35 - Public holidays applies.

(ii) The provisions of this clause will not apply to Registered Nurse levels 4 and 5."

• [12] Clause 34.1(b) of the Agreement deals with annual leave:

(a) Annual leave on full pay is to be granted in accordance with the NES as follows:

(ii) Full time shift workers- five weeks annual leave

(iii) Part time employees- four weeks annual leave on a pro rata basis

(iii) Part time shift workers- five weeks annual leave on a pro rata basis

(b) For the purposes of this clause, a shiftworker is an employee who is not a day worker as defined in clause 23 (a) Span of Hours."

• [13] While the Award has no operation in relation to the Agreement, two of its terms are relevant to its understanding. Clause 22.2 of the Award, which is in identical terms to clause 23 of the Agreement, says this:

(a) The ordinary hours of work for a day worker will be worked between 6.00 am and 6.00 pm Monday to Friday.

(b) A shiftworker is an employee who is regularly rostered to work their ordinary hours outside the ordinary hours of work of a day worker, as defined in clause 22.2(a)."

• [14] Clause 28.2 of the Award defines a shiftworker for the purposes of the NES entitlement to annual leave under the Award:

"(a) For the purposes of the NES a shiftworker is defined as:

(i) an employee who is regularly rostered to work their ordinary hours outside the ordinary hours of work as a day worker as defined in clause 22.2(a); and/or

(ii) an employee who works for more than four ordinary hours on 10 or more weekends.

(b) For the purpose of the clause 28.2(a), a weekend means work in ordinary time on a Saturday and/or a Sunday in any one calendar week."

• [15] The principles to be applied in the interpretation of enterprise agreements are well settled.[1] The first step is to determine whether the disputed terms of the agreement have a plain meaning or are instead ambiguous or susceptible to more than one meaning. The language of disputed terms is to be construed objectively, having regard to both context and purpose, and a narrow or pedantic approach to interpretation is to be avoided. Where there is ambiguity, evidence of surrounding circumstances can be admitted, but only to establish objective background facts relevant to the meaning of disputed terms.

• [16] In this case, the disputed term of the Agreement is clause 34.1(b) of the Agreement, which defines shiftworker for the purposes of the NES entitlement to additional annual leave. It has a plain meaning, although to understand clause 34.1(b) it is necessary to look beyond a literal reading of the words. In clause 34.1(b), "shiftworker" means an employee whose ordinary hours of work are not those of a day worker as defined in clause 23(a) of the Agreement. They are instead between 6.00pm to 6.00am, Monday to Friday and/or on the weekend.

• [17] To understand the Agreement in this way, it is necessary to consider the structure of the Agreement, which plainly has its origins in the Award and is the third successive enterprise agreement covering Opal's (and its predecessor's) aged care employees in New South Wales since 2010.[2] The first was made following the award modernisation process, which resulted in the making of the Award. The Agreement remains substantially in the same form as that agreed in 2010, including in relation to the terms in dispute. Many of the Agreement's terms continue to mirror the Award, although there are also changes that have been tailored over time for Opal and its employees.

• [18] Under the Agreement, ordinary hours of work can be worked on any day of the week and can be averaged over a roster cycle of up to four weeks (clause 22). Work is organised according to a weekly or fortnightly roster (clause 27). For full time employees, hours of work must be, or average, 38 hours per week (clause 11). A part-time employee's hours of work are less than an average of 38 hours per week and must be reasonably predictable, although not fixed (also clause 11). A guaranteed minimum number of hours and the "rostering arrangements which will apply" must be agreed in writing between Opal and a part-time employee.

• [19] Clause 23 of the Agreement deals with "span of hours". In clause 23(a), the ordinary hours of a "day worker" are prescribed as between 6.00am and 6.00pm, Monday to Friday. In clause 23(b), a "shiftworker" is "an employee who is regularly rostered to work their ordinary hours of work outside the ordinary hours of work of a day worker as defined in clause 23(a)".

• [20] There is a difference of significance between clause 23(b) of the Agreement and clause 22.2(b) of the Award, from which clause 23(b) of the Agreement is derived. It involves the omission of a comma in the Agreement before the words "as defined in clause 23(a)". It is unlikely that this was a deliberate omission. It is more likely an oversight by drafters of a practical bent of mind, perhaps because they copied the words from clause 28.2 of the Award instead - but the omission affects the meaning of the Agreement because it clouds the reference to what is defined in clause 23(a) of the Agreement.

• [21] At first glance, clause 23(a) does not define anything at all. It simply sets the ordinary hours of work for a day worker. However, because clause 34.1(b) of the Agreement operates by reference to "a day worker as defined" in clause 23(a), and because clause 23(b) defines "shiftworker" as something different to a day worker, the Agreement invites the reader to understand clause 23(a) as a definition of "day worker", including for the purpose of clause 34.1(b).

• [22] This is not a correct reading of the Agreement, because "day worker" is not a defined term. What is defined in clause 23(a), and which becomes apparent once clause 23(b) is read in light of clause 22.2 of the Award, is the phrase "the ordinary hours of work of a day worker".

• [23] A shiftworker in clause 23(b) of the Agreement is an employee who is regularly rostered to work their ordinary hours of work outside the hours of a day worker as defined in clause 23(a). When the cross‑reference into clause 23(b) is replaced with its full meaning, a shiftworker is an employee who is regularly rostered to work their ordinary hours of work outside the hours of 6.00am and 6.00pm, Monday to Friday.

• [24] This definition of shiftworker applies generally for the purposes of the Agreement, except in relation to clause 34.1(b). Its purpose is to identify the group of employees to whom the majority of shiftwork provisions in the Agreement apply. This includes shift penalties payable under clause 32 of the Agreement for afternoon and night shifts worked on weekdays, as well as meal allowances and annual leave loading.

• [25] The definition of shiftworker in clause 34.1(b) of the Agreement has the separate and limited purpose of seeking to meet the statutory condition for approval of enterprise agreements in s.196(2) of the Act. The effect of s.196(2) is to require that the definition of shiftworker in an enterprise agreement covers at least the group of employees who would otherwise be shiftworkers under a relevant modern award for the purpose of the NES entitlement in s.87(1)(b).[3] In other words, it aims to ensure that the NES entitlement to an additional week of annual leave is not lost for shiftworkers in the transition from a modern award to an enterprise agreement.

• [26] Clause 34.1(b) seeks to meet this requirement by defining the group of shiftworkers who are entitled to an extra week's annual leave under s.87(1)(b) of the Act "for the purposes of the National Employment Standards" (NES). The definition is plainly intended to operate separately from the definition of shiftworker in clause 23(b) of the Agreement. There would be no need otherwise for two definitions of the same word. And despite the common usage of the phrase "day worker as defined in clause 23(a)" in each clause, the two definitions are expressed quite differently.

• [27] It is also unlikely that the parties intended the definition of shiftworker to be the same for all purposes of the Agreement, potentially resulting in only some shiftworkers being entitled to the various Agreement provisions specific to shiftworkers. While clause 23(b) covers the same ground as the first category of employees in clause 28.2(a)(i) of the Award, it makes no reference to the second category of employees in clause 28.2(a)(ii) of the Award. This sets up a potential approval difficulty if only the definition in clause 23(b) of the Agreement is relied upon in connection with s.196. For these reasons, I do not read clause 34.1(b) as intended to replicate the definition in clause 23(b) of the Agreement.

• [28] The words of clause 34.1(b) are brief. A "shiftworker" is defined by reference to something that it is not - a day worker. This could be understood as extending the additional week of annual leave to any employee who is not a day worker, regardless of their roster. However, such a literal reading -undertaken in isolation from other terms of the Agreement and that glosses over what is actually "defined in clause 23(a)" - is not the correct reading.

• [29] In describing a shiftworker as an employee who is "not a day worker" for the purposes of the additional week of annual leave, what is intended is to refer to an employee whose ordinary hours of work are not between 6.00am and 6.00pm, Monday to Friday. The drafting of clause 34.1(b) is imperfect in its expression of this intention, but precision drafting is more than one can usually expect in the settlement of enterprise agreement terms.

• [30] Further, and because an employee cannot simultaneously be regarded as someone whose ordinary hours are 'between' and 'not between' the day worker span, only an employee whose rostered ordinary hours include shifts that start and finish wholly between the hours of 6.00pm and 6.00am, Monday to Friday and/or between 6.00pm Friday and 6.00am Monday, can be a shiftworker for the purposes of clause 34.1(b). This is so even if they are also rostered to work ordinary shifts within, or overlapping with, the day worker span. But an employee whose rostered ordinary hours always fall partially within the day worker span cannot be a shiftworker for the purpose of clause 34.1(b) of the Agreement.

• [31] This construction sits in harmony with the purpose of the additional week of annual leave for shiftworkers, which is to compensate for the particular inconvenience of working what might be called unsociable hours (nights and weekends). It avoids the strange outcome of an entitlement bearing almost no connection to the inconvenience to which it is directed and the inequitable outcomes that would follow, such as providing the same benefit of additional leave to employees working a single weekday shift ending at 7.00pm each fortnight as to those rostered on permanent night shift, or on every weekend.

• [32] It also aligns with s.196 of the Act because clause 34.1(b) is broad enough to cover the two separate elements of the Award definition of shiftworker for the purposes of the NES in clause 28. It can cover an employee who is regularly rostered to work their ordinary hours of work outside the day worker span (clause 28.2(a)(i) of the Award) and an employee who works more than four hours on 10 or more weekends in a year (clause 28.2(a)(ii) of the Award).

• [33] I reject the submission that clause 34.1(b) is intended to confer the additional entitlement on any employee whose ordinary hours of work are not solely within the day worker span. It is unlikely the parties intended to cast the net so wide that except in relation to day workers, the entitlement would apply regardless of an employee's particular work or roster patterns.

• [34] This raises a broader issue about the industrial origins of the entitlement to an additional week of annual leave for shiftworkers. The decision in O'Neill v Roy Hill Holdings Pty Ltd (the Roy Hill decision)[4] is often relied upon for the formula it approved to determine eligibility for the additional annual leave entitlement under the NES. It has its origins in a continuous shift work system where employees normally worked an equal number of shifts on each of the 7 days of the week and when an employee "regularly works on Sundays and public holidays". Similarly, in Australian Rail, Tram and Bus Industry Union v One Rail Australia Pty Ltd[5] (the One Rail decision), the Commission dealt with seven‑day shiftworkers in the manufacturing industry and whether they met the description of "continuously rostered to work shifts 24 hours a day for seven (7) days a week and regularly works on Sundays and public holidays."

• [35] The Roy Hill decision and the One Rail decision are relevant to the entitlement for seven‑day shiftworkers who regularly work on Sundays and public holidays. They are not necessarily a useful guide to understanding the equivalent entitlement in the aged care industry, because the definition of "shiftworker" in the Award is quite different to those considered in the Roy Hill and One Rail decisions. To start with, there is no express requirement for shiftworkers to be rostered over seven days of the week, or regularly on Sundays and public holidays to qualify for the entitlement.

• [36] The approach adopted by the then Australian Industrial Relations Commission in the making of the Award was to "determine the appropriate definition of shiftworker for the purposes of the additional week's annual leave entitlement by reference to the qualifying provisions of pre-existing award instruments."[6] A brief review of submissions to the award modernisation process[7] in 2008-2009 indicates that a 'seven day' shiftworker definition was proposed by both aged care employers and the Union in connection with the development of the NES entitlement in the Award, although these proposals do not appear to have been adopted in terms by the Commission.

• [37] That said, the case before me does not really speak to the alternative origins of the entitlement in the aged care industry. There is brief general evidence about what one person understands to be typical shift work patterns in the industry, comprising of day shifts, afternoon shifts and night shifts. There is similarly brief general evidence about typical shifts at Opal's various sites. There is limited, if any, evidence about the history of the Award entitlement and how it came to be in the form it was at the time the Award was made.

• [38] In Re Aged Care Award 2010[8] a Full Bench of what was then Fair Work Australia observed that changing the definition of shift work in the transition to a modern award would have an effect, and that it was likely that some employees who did not previously qualify for the additional week of leave would now do so, while some employees who previously qualified would not now do so. This tells against a broader expansion of the safety net entitlement to all shiftworkers.

• [39] Likewise, summaries of the various state and territory entitlements to be displaced if the Award was made were relied on in the case above. Those summaries indicate that the additional leave for shiftworkers in the aged care industry, while varied, has historical connections to work on rotating seven-day shift rosters, and/or on weekends and public holidays. However, it is not necessary to reach a concluded view on these matters because the Agreement definition of shiftworker for the purposes of the NES is different to that found in the Award.

• [40] An employee is a "shiftworker" for the purposes of the entitlement to an additional week's annual leave in clause 34.1(b) of the Agreement if at least one of their rostered shifts each roster cycle is wholly between the hours of 6.00pm and 6.00am, Monday to Friday and/or between the hours of 6.00pm Friday and 6.00am, Monday.

• [41] The dispute is determined accordingly.

[1] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005; The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447; see also Workpac v Skene [2018] FCAFC 131.

[2] Domain Principal Group Enterprise Agreement 2010 AE882930.

[3] Ramsay Health Care Australia v The Australian Workers Union [2012] FWAFB 4033.

[4] O'Neill v Roy Hill Holdings Pty Ltd [2015] FWC 2461.

[5] [2021] FWC 3097.

[6] Application by Aged Care & Housing Group Inc T/A ACH Group & Anglicare SA Incorporated and Others [2010] FWA 3725 at [4].

[8] [2010] FWAFB 2026 at [46] (23 March 2010).

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