Fair Work Act 2009

s.739 - Application to deal with a dispute

Viva Energy Australia Pty Ltd Trading AS Viva Energy Australia - Clyde & Gore Bay Terminals

Application to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement - payment whilst on personal leave and annual leave.

[1] The Mining and Energy Union is in with dispute with Viva Energy Australia Pty Ltd in relation to the calculation of payments to be made to employees of Viva while they are on personal leave and annual leave. The answer to those questions depends on the proper interpretation of various provisions of the Viva Energy Australia Clyde & Gore Bay Terminals Operator Enterprise Agreement 2024. The Agreement covers employees of Viva who are engaged to work at Viva's Clyde & Gore Bay Terminal and are employed in the classifications prescribed by the Agreement.

[2] On 16 September 2025, the MEU filed an application in the Commission for it to deal with the dispute pursuant to the dispute resolution procedure in the Agreement. There is no dispute between the parties that the Commission has jurisdiction to deal with the dispute pursuant to s 739 of the Fair Work Act 2009 (Cth) and the dispute resolution procedure at clause 9 of the Agreement.

[3] Following an unsuccessful conciliation of the dispute, I set the matter down for arbitration.

[4] The arbitration took place on 14 January 2026. The MEU adduced evidence from Mr Martin Tindal, who is employed by Viva to work at the Gore Bay Terminal. Viva adduced evidence from Ms Georgina Elliott, Viva's Head of Workplace Relations.

[5] The following provisions of the Agreement are relevant to the dispute:

15.1 Employees will be paid the wages and allowances assigned to their classification contained in SCHEDULE A of this Agreement. The rates of pay recognise the total scope of work performed by an Employee (including emergency response activities).

15.2 Payment of wages and allowances and any other payments will be made monthly by electronic funds transfer into a bank (or other recognised financial institution) as nominated by the Employee, less any deductions authorised by the Employee.

15.3 The annualised salary (wages and allowances) is defined to include the following components:

A payment determined by Shift worker's rosters. The Shift Penalty is calculated in accordance with Clause 21.0 Overtime & Penalty Rates.

A payment determined by Shift worker's rosters. The Shift Penalty is calculated in accordance with Clause 21 Overtime & Penalty Rates.

An annual allowance (paid monthly) for developing and maintaining competency as directed by the Company for emergency response. The allowance is frozen for the life of this Agreement.

An annual allowance (paid monthly) for PLC in accordance with Clause 22 and calculated at 3 hours per week at overtime (double time) rates.

An annual allowance (paid monthly) which is frozen for the life of this Agreement.

This allowance is paid in lieu of any entitlement to meal allowance, telephone allowance, travel time, use of own car on Company business and any other historical allowance relating to Manufacturing/Refining operations at Clyde and Gore Bay.

SCHEDULE A - ANNUAL BASE WAGES & ALLOWANCES TABLES provides details of annualised salary over the life of the Agreement.

17.1 The Ordinary Hours of work for Shift workers will be an average of 35 hours per week worked over the roster cycle.

17.2 Shift workers may be required to work a shift of up to 12 consecutive Ordinary Hours (including meal breaks)

17.3 No Employee will be required to work beyond fourteen (14) hours at a time on a single shift.

a) An Employee must comply with the request of the Company to work reasonable overtime at any time during the seven days of the week at the appropriate remuneration prescribed in this Agreement.

b) An Employee will be paid the following additional payments for overtime worked:

All time worked in excess of or outside the Employee's Ordinary Hours with the exception of Public Holidays

Double the hourly base rate of pay for the Employee's classification as set out in Schedule A

All time worked on a Public Holiday in excess of or outside of the Employee's Ordinary Hours

Triple the hourly base rate of pay for the Employee's classification as set out in Schedule A

c) Where an Employee is requested to work overtime prior to the start, or following completion, of a rostered shift, overtime will be paid for hours worked over the Ordinary Hours only.

d) Where an Employee is called in on a rostered day off a 6 hour minimum overtime payment will apply.

e) In the event of cancellation of overtime where the Employee is not given at least 24 hours' notice prior to the start of the overtime shift, the Employee will be paid for 6 hours of work at the applicable overtime rate.

f) An Employee may elect, with the consent of the Company, to take time off instead of payment for overtime at a time or times agreed with the Company on the basis of one hour of time off for each hour of overtime worked.

a) Monday to Friday and weekend Shift Penalty rates will be applied to each rostered shift in the shift cycle, in accordance with the table below:

Shift Penalty (% applied to the base rate of pay per hour for the Employee's classification as set out in Schedule A)

Saturday - where the majority of the shift falls between midnight on Friday and midnight on Saturday.

50% (in substitution for and not cumulative upon the Monday to Friday shift penalty rates)

Sunday - where the majority of the shift falls between midnight on Saturday and midnight on Sunday.

100% (in substitution for and not cumulative upon the Monday to Friday shift penalty rates)

b) The annual Shift Allowance is calculated as follows:

i. for each rostered shift in the roster cycle, multiply the rostered hours for that shift by the shift penalty percentage (%) to calculate the shift penalty (in hours) for that shift

ii. sum the total of penalty hours for each rostered shift in the roster cycle

iii. sum the total of ordinary hours for each rostered shift in the roster cycle

iv. divide the total penalty hours by the total of ordinary hours in the roster cycle to ascertain the shift cycle percentage for each Shift worker

v. calculate the average shift cycle percentage across all Shift workers at Clyde and Gore Bay

vi. multiply the average Shift worker shift cycle percentage by the annual base salary to determine the annual shift allowance.

a) An Employee who works rostered hours on a Public Holiday as prescribed in Clause 30.0 of this Agreement will be paid the following Public Holiday penalty rates.

Shift Penalty (% applied to the base rate of pay per hour for the Employee's classification as set out in Schedule A)

The rates provided in the table above are in substitution for and not cumulative upon the Monday to Friday shift penalties or penalty rates for weekends in Clause 21.2.

b) The annual Public Holiday payment is calculated as follows;

i. determine the shift penalty applicable to the roster in accordance with Clause 21.2

ii. to determine the percentage of days worked in the roster cycle, divide the total number of rostered shifts by the total number of days in the roster cycle.

iii. calculate the average shift duration (in hours) by dividing the total rostered ordinary hours by the number of rostered shifts

iv. for each Shift worker calculate the total Public Holiday penalty hours per annum as follows: Number of PHs (13) x percentage of days worked x average shift duration x (200% - shift penalty applicable to the roster) v. for each Shift worker calculate the annual Public Holiday penalty percentage as follows: total Public Holiday penalty hours divided by (35 x 52)

vi. calculate the average Public Holiday percentage across all Shift workers at Clyde and Gore Bay

vii. multiply the average Public Holiday percentage by the annual base salary to determine the annul Public Holiday payment.

23.1 Under local arrangements specific to this Agreement, Employees performing Shift Work accrue annual leave at the rate of 248 hours per annum. This includes the equivalent of an additional week of annual leave applicable to shift workers for the purposes of the NES. The Company will ensure that all Employees will receive at least the amount of annual leave provided under the NES.

23.2 In accordance with the NES, where approved annual leave falls on a Public Holiday, no deduction will be made to an Employee's leave balance for the Public Holiday.

23.3 Shift workers shall during their absence on annual leave be paid as if at work. The shift penalty payment is in lieu of a 22.5% annual leave loading payment.

23.4 Annual leave is to be taken at a time agreed between the Employee and their supervisor, provided that the Company may require an Employee to take annual leave in accordance with clause 23.5.

23.5 The Company may require an Employee to take annual leave if the Employee has accrued more than 10 weeks, paid annual leave. The Company must give an Employee at least 28 days' notice prior to the date the Employee is required to commence the leave. The Company will not direct an Employee to take excess leave where that direction would result in the Employee having less than one years' accrued entitlement.

25.1 An Employee shall be entitled to personal/carer's leave of 120 hours per year to be paid as if at work.

25.2 An Employee who is absent from work on account of personal/carer's leave shall be entitled to leave of absence without deduction of pay subject to the following:

a) The Employee shall not be entitled to paid leave of absence for any period in respect of which the Employee is entitled to worker's compensation.

b) Where practicable the Employee shall notify their supervisor of their absence prior to the commencement of the Employee's next period of work, and in any case the Employee shall within 24 hours of the commencement of such absence inform the Company of the Employee's inability to attend for duty and, as far as practicable, state the nature of the illness or incapacity and the estimated duration of the absence.

c) If required by the Company, the Employee must give the Company evidence that would satisfy a reasonable person that the Employee was unable to attend for duty on the day or days for which personal/carer's leave is claimed because of personal illness or injury or because of the need for the Employee to provide care or support to a member of the Employee's immediate family or household affected by an illness, injury or unexpected emergency.

25.3 Where an otherwise fit for work Employee is directed or required by a person authorised by statutory instrument or gazetted Order not to attend for work on account of a public health emergency, the Company will only require evidence that conditions in the relevant direction are satisfied in order to grant personal/carer's leave. The Employee will also be notified of any special leave offered by the Company.

27.1 Employees accrue long service leave at the rate of 520 hours for each ten (10) years of service.

27.2 The amount of long service leave entitlement for an Employee who has completed at least ten years service with the Company from 1 January 1985, will be;

a) Thirteen consecutive weeks' leave for ten years so completed;

b) Thirteen consecutive weeks' leave in respect of each ten years' service since the previous long service entitlement and

1. On the termination of the Employee's employment, a proportionate amount calculated on the basis of thirteen consecutive weeks' leave for ten years' service, for the number of years served since the previous long service entitlement.

27.3 In the case of an Employee who has completed at least five years' service with the Company, and whose employment is terminated for any cause other than serious or wilful misconduct, the entitlement is based on a proportionate amount of thirteen weeks' leave for ten years' service.

27.4 For Continuous Shift Workers, the entitlement to long service leave is granted in working shifts and not calendar weeks. Therefore the ten year service entitlement to long service leave is not thirteen calendar weeks, but 43.3 12 hour shifts (520 hours).

27.5 Payment for Period of Leave or Upon Termination of Employment:

a) Payment of long service leave will be made at the Employee's annualised salary rate.

a) Accrued long service leave may be taken as soon as practicable after the accrual date, having regard to the needs of the business, and subject to agreement between the Company and the Employee.

b) Public Holidays will be credited if they fall during the leave period, and the long service leave will be extended by one day for each Public Holiday.

a) In special circumstances, provided that an Employee has completed at least five years' service, the Company may grant long service leave before it has accrued. No further leave entitlement will occur until the next accrued date. If the Employee leaves the Company before the leave has accrued, the Company will deduct from final pay the value of any excess leave taken.

a) On the termination of service, any long service leave to which the Employee was entitled but had not taken, will be paid out as if the Employee were at work.

• [6] There is no dispute between the parties as to the general principles that I must apply in properly construing the Agreement. Those general principles were summarised by the Full Court of the Federal Court of Australia in James Cook University v Ridd:[1]

"(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." [references omitted]

• [7] In addition, the construction to be given to a clause of an industrial instrument should not be a strict one but rather should be one that contributes to a sensible industrial outcome.[2] Reference may also be made to whether a particular construction would make industrial or commercial sense and an interpretation which accords with business common sense will be preferred to one which does not.[3]

[8] The Gore Bay Terminal is located in Sydney. At the Gore Bay Terminal, imported fuel products including diesel, marine fuel oil, jet fuel and gasoline are received and distributed. The Gore Bay Terminal operates 24 hours a day, seven days a week.

[9] Under the Agreement, Operators perform shift work and usually work at the Gore Bay Terminal an average of 35 hours per week, for which they are paid an annualised salary comprised of the following components:

(e) personal/carer's leave coverage allowance; and

[10] A number of Operators left Viva's business in the period leading up to October 2025. As a result, Viva put in place a temporary roster change at the Gore Bay Terminal to ensure that appropriate Operator coverage could be provided at all times. The temporary roster was in effect from 15 September 2025 to about 8 December 2025.

[11] The temporary roster provided for Operators to work an average of 42 hours per week, comprised of 35 ordinary hours and seven hours of rostered overtime. This was based on 12-hour shifts comprising 10 ordinary hours and two overtime hours. The annualised salary paid to Operators covered the work performed by Operators during their ordinary hours of work. Where overtime was worked by an Operator, it was paid in addition to the annualised salary.

• [12] If an Operator takes a period of personal/carer's leave or annual leave, Viva deducts the period of leave from the Operator's leave record based on the number of ordinary hours in that period.[4] The Operator is paid their annualised salary for the hours of personal/carer's leave or annual leave taken by the Operator.[5]

• [13] If an Operator is rostered to work overtime on a day on which the Operator takes personal/carer's leave or annual leave, Viva does not deduct the overtime hours deducted from the Operator's accrued entitlement to personal/carer's leave or annual leave and the Operator is not paid for the overtime hours which they did not work because they were on leave.[6]

[14] The MEU contends that, on the proper construction of the Agreement, Operators who take a period of personal/carer's leave or annual leave while working under the temporary 12-hour roster are required to be paid as if at work, which means they must be paid the same remuneration as they would have earned had they performed their rostered shift, including the rostered overtime component that forms part of the 12-hour roster pattern.

• [15] Viva contends that the phrase "paid as if at work" means the amount of pay payable as if at work in respect of the ordinary hours for which the leave is taken (being the Operator's annualised salary provided for under clause 15 and Schedule A of the Agreement). Viva submits that this is more generous that the National Employment Standards, which require the payment of such leave at the employee's base rate of pay.[7]

[16] Clause 25.1 of the Agreement provides that Operators are "entitled to personal/carer's leave of 120 hours per year to be paid as if at work". Similarly, clauses 23.1 and 23.3 of the Agreement provide that an Operator performing shift work "accrue[s] annual leave at the rate of 248 hours per annum" and during an Operator's "absence on annual leave [they must] be paid as if at work".

• [17] The expression "paid as if at work" has a clear meaning. It means that the Operator must be paid the same amount as if they had worked the hours in question.[8] However, the crucial issue in the current dispute is what are the hours for which the Operator must be "paid as if at work".

• [18] The National Employment Standards provide for annual leave and personal leave to be taken in respect of an employee's ordinary hours of work in the period of leave.[9] The National Employment Standards may be supplemented or enhanced in an enterprise agreement, but they cannot be displaced to the detriment of an employee.[10] An enterprise agreement must not exclude any provision of the National Employment Standards and, to the extent that it does, a term of an enterprise agreement has no effect.[11]

• [19] The National Employment Standards also prohibit an employer from requesting or requiring a full-time employee to work more than 38 hours per week unless the additional hours are reasonable.[12] Clause 21.1 of the Agreement operates in a similar manner. It only requires an Operator to comply with a request by Viva to work overtime if the overtime is "reasonable".

• [20] If an Operator is rostered to work some hours of overtime on a particular day and the Operator is entitled under the Agreement to take personal/carer's leave or annual leave for that day, it would not be reasonable to require the Operator to work the rostered overtime on that day.[13] It follows that the Operator is not required or obliged under the Agreement to work overtime on a day on which they are entitled to be absent from work due to personal/carer's leave or annual leave. Accordingly, there is no basis or requirement for an Operator to take personal/carer's leave or annual leave in respect of overtime hours which the Operator has been requested (by way of a roster) to work.

[21] Returning to clauses 23 and 25 of the Agreement, I consider it is clear that, as is the case under the National Employment Standards, an Operator's annual entitlement to 120 hours of personal/carer's leave and 248 hours of annual leave confers a right on the Operator to be absent from their ordinary hours of work in the period of leave. An Operator is not required to use their annual entitlement to 120 hours of personal/carer's leave and 248 hours of annual leave to be absent from rostered overtime because it is not reasonable to require the Operator to work overtime during a time that the Operator has an entitlement to be absent from work on personal/carer's leave or annual leave.

[22] It is important to construe the expression "be paid as if at work" in clauses 23.3 and 25.1 in the context of the whole of clauses 23 and 25, as well as the entire Agreement, including when an Operator is required to perform overtime and when they have a right not to work overtime. Having regard to this context, it is apparent that the expression "be paid as if at work" relates to the actual leave taken by an Operator, being their annual entitlement to 120 hours personal/carer's leave and 248 hours annual leave. As I have sought to explain, an Operator is entitled under the Agreement to be absent from their ordinary hours whilst on personal/carer's leave or annual leave. It follows that it is the 120 ordinary hours of personal/carer's leave and 248 ordinary hours of annual leave for which the Operator must "be paid as if at work". If an Operator had worked such ordinary hours, they would be entitled under the Agreement to be paid their annualised salary.

[23] The situation would be different if Viva had a right under the Agreement to, and did, deduct from an Operator's accrued entitlement to personal/carer's leave or annual leave hours which the Operator had been rostered to work overtime. For example, if an Operator took a day of personal leave when they were rostered to work 10 ordinary hours and two overtime hours under the temporary roster and Viva deducted 12 hours from the Operator's accrued entitlement to personal leave, then Viva would have to pay the Operator for the 12 hours personal leave "as if at work", which would include two hours of overtime.

[24] Clause 27.5 of the Agreement provides for payment of long service leave to be made at an Operator's "annualised salary rate". If the same language had been used in clauses 23.3 and 25.1 of the Agreement, there would be no dispute between the parties. The fact that different language is used in clauses 23.3 and 25.1 - "be paid as if at work" - gives rise to ambiguity and leaves open the argument that this expression is intended to mean something different from "annualised salary rate". However, like many enterprise agreements, I consider that the difference in language is likely due to the fact that the Agreement does not appear to have been drafted with the precision one might expect from an experienced and careful lawyer or a parliamentary draftsperson.

[25] For the reasons explained above, I am not satisfied that the proper interpretation of the Agreement is one whereby an Operator is required to take their accrued personal/carer's leave or annual leave to cover hours for which they have been rostered to work overtime, nor does the Agreement require payment of such overtime hours which are not worked by the Operator while on personal/carer's leave or annual leave.

[26] Viva contends that the question for determination in this arbitration is properly characterised as follows:

In the context of clauses 23.3 and 25.1 of the Agreement, does the phrase 'paid as if at work' mean that employees engaged on a roster pattern which includes rostered overtime should be paid for that rostered overtime while on annual leave and personal/carer's leave?

[27] For the reasons given, the answer to this question is 'no'. In short:

(a) an Operator is not required to, and does not, take personal/carer's leave or annual leave to cover rostered overtime which they do not work;

(b) an Operator's accrued entitlement to personal/carer's leave and annual leave is not reduced by any rostered overtime hours which the Operator does not work while they are on leave; and

(c) an Operator is paid as if at work for the ordinary hours they take as personal leave/carer's leave or annual leave by being paid their annualised salary for those hours.

K. Aistrope, Solicitor, for Viva Energy Australia Pty Ltd

[1] [2020] FCAFC 123 at [65]

[2] Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182 at [8]- [9], citing Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [96] (Kirby J); Polan v Goulburn Valley Health [2016] FCA 440 at [34] (Mortimer J)

[3] Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCAFC 149 at [21] (Jessup, Rangiah and White JJ); Transport Workers Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [34] (Tracey J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2016) 262 IR 176; [2016] FCA 1009 at [32]- [33] (Logan J); NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [66] (Flick J)

[8] See, for example, CFMEU v Ashton Coal Operations Pty Ltd [2013] FWC 447 and AWU v Brunel Technical Services Pty Ltd [2011] FWA 6941

[9] Sections 90(1) and 99 of the Act; CEPU v Qantas Airways Limited [2020] FCAFC 205 at [14] & [166]; Modelez Australia Pty Ltd v AMWU [2020] HCA 29 at [29]- [31]

[13] Modelez Australia Pty Ltd v AMWU [2020] HCA 29 at [40]

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