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[2025] FWC 3884
General information, not legal advice.
Fair Work Commission
2025-12-18
Original judgment source is linked above.
s.739 - Application to deal with a dispute
Application for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure - section 739 of the Fair Work Act 2009 - dispute concerns part-time employee - broken shifts - intervals between shifts - overtime - dispute is determined
[1] This decision concerns an application made by Mr William Finlay Maher under section 739 of the Fair Work Act 2009 (FW Act). NSW Trains trading as NSW TrainLink (NSW Trains).
[2] The matter was the subject of a hearing before me on 27 August 2025. Mr Maher appeared for himself. Ms Alice DeBoos appeared for NSW Trains with permission granted under section 596(2)(a) of the FW Act. Mr Maher gave evidence and was cross-examined. NSW Trains relied upon witness statements from Ms Coral Yopp (Senior Manager, Employee Relations, Sydney Trains), Mr John Sullivan (Customer Service Shift Supervisor, NSW Trains), and Ms Nikki Louise Dover (Manager Rostering and Scheduling, NSW TrainLink). Mr Maher confirmed that he did not seek to cross-examine the three witnesses called by NSW Trains. Mr Maher confirmed that he did not contest the matters of fact set out in the witness statements of the three witness called by NSW Trains. All the evidence and submissions made by the parties has been considered.
Sydney Trains and NSW TrainLink Enterprise Agreement 2022
[3] The enterprise agreement containing the term referred to in section 738 of the FW Act that allows the Fair Work Commission to deal with this dispute is the Sydney Trains and NSW TrainLink Enterprise Agreement 2022 (the Agreement). The term is clause 8, which is entitled Dispute Settlement Procedure. There was no contest that the dispute fell within clause 8.2 of the Agreement and that the Commission was authorised to arbitrate the dispute. In doing so, the Commission is exercising a power of private arbitration.[1] On being authorised to arbitrate the dispute, the Commission is empowered to exercise all powers and procedures under the FW Act to settle the dispute, subject only to any express limits found in the relevant dispute settlement procedure.[2]
[4] The nature of the dispute concerns Mr Maher's claim that he was not paid various entitlements, such as overtime and various penalties, for work performed in an eight month period between March 2024 and October 2024.
[5] The clauses in the Agreement that are especially relevant to the determination of the dispute are:
(a) Clause 15.4, which concerns part-time employment;
(c) Clause 194 (especially clause 194.5 - 194.7), which concerns intervals between shifts for employees that was the occupant of a position under one of the classifications in Schedule 7A of the Agreement;
(d) Clause 201, which concerns a working arrangement that is described as broken shifts for employees that was the occupant of a position under one of the classifications in Schedule 7A of the Agreement;
(e) Clause 203 (especially clauses 203.5 - 203.7), which concern overtime for employees that was the occupant of a position under one of the classifications in Schedule 7A of the Agreement;
[6] These, and the other clauses in the Agreement that have a bearing on the determination of this dispute, are to be interpreted on application of the well-known principles used to interpret an enterprise agreement.[3] The clauses referred to above have been reproduced in the Schedule to this Decision.
[7] On or about 14 January 2022, Mr Maher commenced employment with NSW Trains in the role of Customer Attendant Qualified - Level 2.[4] Mr Maher worked at Grafton Station.[5] Mr Maher was engaged as a part-time employee.[6] Mr Maher's first contract was before me.[7] Mr Maher's contract includes these words: This role is being offered to you on a permanent part-time basis and you will be working 20 hours per week.[8]
[8] The period in dispute is the eight month period between March 2024 and October 2024.[9] In that eight month period, Mr Maher remained engaged as a part-time employee in the role of Customer Attendant Qualified - Level 2 working from Grafton Station. Mr Maher's contract hours of work remained 20 hours per week throughout the period in dispute. In October 2024, Mr Maher successfully obtained a full-time position with NSW Trains.[10]
[9] It appears from the Master Roster[11] and the Period Rosters[12] that were attached to Mr Sullivan's statement that each of the Customer Attendant Qualified (CAQs) employees engaged at Grafton Station in the eight month period between March 2024 and October 2024 were all part-time employees.[13] The 'Hours of Duty' for the part-time CAQs engaged at Grafton Station in the period in dispute were 9:15 a.m. - 1:15 p.m., 4:00 p.m. - 8:00 p.m., or 8:00 p.m. - 12:00 a.m across the seven days of the week.
[10] There were days in the period in dispute that Mr Maher worked a four hour shift with a start and finish time consistent with the 'Hours of Duty'. There is no dispute about the pay and entitlements that Mr Maher received for working such a shift.
[11] There were days in the period in dispute where Mr Maher worked from 8:00am - 12:00 p.m. and then worked from 8:00 p.m. until 12:00 a.m. in the same day. The days where this occurred are identifiable on the period rosters that were attached to Mr Sullivan's statement by the reference to 0800 + 2000. [14] The start and finish times of the four hours of work performed by Mr Maher in the morning on those days were inconsistent with the 'Hours of Duty' for a CAQ engaged at Grafton Station.
[12] It appears this arrangement came about when Mr Maher worked additional hours, which is a term that I use deliberately. It is deliberate because there was much conjecture about how this arrangement should be described. Additional hours is a phrase used in clause 15.4 of the Agreement, which I discuss below. It appears that one four hour period of work performed by Mr Maher on the days in dispute formed part of Mr Maher's agreed hours and the other four hour period of work performed by Mr Maher was additional hours. Agreed hours is a phrase used in clause 15.4 of the Agreement and I use it deliberately. Mr Maher accepted in cross-examination that he agreed to work these additional hours (albeit the question was phrased as additional shifts). Mr Sullivan explained that it was his understanding that Mr Maher was required to have eight hours off between shifts.[15] The result being that the start and finish times for the four hours of work to be performed by Mr Maher in the morning was adjusted to ensure that Mr Maher had an eight hour break before working a further four hours that evening. This meant that Mr Maher did not work from 9:15 a.m. - 1:15 p.m., however, instead worked from 8:00 a.m. - 12:00 p.m. before coming back to work eight hours later and working from 8:00 p.m. - 12:00 a.m.
[13] The first issue in dispute concerns how Mr Maher should have been paid under the Agreement for working from 8:00am - 12:00 p.m. and then from 8:00 p.m. until 12:00 a.m. on the same day.
[14] The second issue in dispute concerns how Mr Maher should have been paid when he worked more than 10 shifts in a fortnight. NSW Trains accept that there were fortnights in the period in dispute where Mr Maher worked more than 10 shifts.[16] The material put before me by Mr Maher was convoluted. The circumstances by which Mr Maher worked more than 10 shifts in a fortnight were not readily identifiable. It appears that this dispute arises in three circumstances. One, where Mr Maher worked the 2 x four hour shifts in the one day described above. The argument here being that if that arrangement was not a single broken shift within the meaning clause 201 of the Agreement, it must naturally follow that there are two separate shifts that ground a claim by Mr Maher that he has not been paid correctly. The binary characterisation of this working arrangement - broken or single shifts - is not determinative of the overall question of whether Mr Maher was paid correctly in accordance with the Agreement. Two, it appears that there were days in the eight month period between March 2024 and October 2024 that Mr Maher worked what was described by Mr Sullivan as two periods of duty.[17] The first period started at 4:00 p.m. and the second period started at 8:00 p.m. that day.[18] The work was continuous such that the combined total hours was 8 hours.[19] NSW Trains treated this as a single shift.[20] Mr Maher was paid a night shift penalty for the entire 8 hours worked.[21] The days where this occurred are identifiable on the period rosters that were attached to Mr Sullivan's statement by the reference to 1600 + 2000.[22] Three, Mr Maher helpfully provided his timesheets for the period in dispute.[23] Mr Maher's timesheets appear to consistently identify that Mr Maher was rostered to work five of the seven days of the week. The other two days are identified as B/O. It is evident from Mr Maher's timesheets that he was consistently rostered and worked his agreed hours by way of five x four hour shifts every seven days. It is evident from Mr Maher's timesheets that he worked additional hours. The additional hours being a second period of four hours on one of those five days, and Mr Maher performing work on a day identified as B/O. That is a reference to a Book Off Day, which is a day that a shiftworker (such as Mr Maher) is not rostered to work.[24] As such, the third circumstance where it appears that Mr Maher worked more than 10 shifts in a fortnight includes Mr Maher working on a Book Off Day.
[15] In advance of the hearing, the parties were directed to confer and make a genuine attempt to agree on the question/s for the Commission to determine in settlement of the dispute. Ultimately, the parties came close to agreeing on a series of questions that went to the core issues in dispute,[25] other than some additional questions posed by Mr Maher that travel well outside the authority conferred on the Commission.
[16] One issue of disagreement was the description of the work performed by Mr Maher that was in addition to his ordinary shifts. Mr Maher sought to describe such work as Additional Hours and Additional Shifts.[26] NSW Trains sought to describe such work as Additional Shifts.[27] Clause 15.4 of the Agreement concerns part-time employment. Mr Maher was a part-time employee throughout the period in dispute. The phrase agreed hours is used in clause 15.4(a) and is explained to mean the contract hours of work. I am satisfied that Mr Maher's agreed hours were 20 hours per week as recorded in the contract. Clause 15.4(f) of the Agreement uses the phrase agreed minimum hours. I am satisfied that the phrase agreed minimum hours in clause 15.4(f) is intended to mean the same thing as the phrase agreed hours in clause 15.4(a). Clause 15.4(f) & (g) of the Agreement use the phrase additional hours. I have adopted the phrase additional hours to describe the periods of work performed by Mr Maher that are in dispute - i.e. the second four hour period worked by Mr Maher on the same day as another four hour period, Mr Maher working on a Book Off Day etcetera. It is best described as additional hours because that is consistent with the language used in clause 15.4 of the Agreement.
[17] The questions that I propose to answer in settlement of this dispute are questions largely consistent with the questions proposed by NSW Trains. The questions for arbitration are set out below:
Between March and October 2024, the Applicant worked in addition to his ordinary shifts at the Grafton Station (Additional Hours)
Are any of the Additional Hours worked by the Applicant and the Applicant's ordinary hours on the same day collectively a broken Shift within the meaning of clause 201 of the Agreement? If so, do any broken Shifts:
Is the Applicant entitled to time and a quarter pay under clause 194.6 of the Agreement for working the Additional Hours?
Is the Applicant entitled to overtime rates pursuant to clause 194.7 for working the Additional Hours, assuming that they are less than 8 hours apart from another Shift?
Is the Applicant entitled the penalties in clause 203.6 or 203.7 of the Agreement for working the Additional Hours?
[18] I do not accept that the days where Mr Maher worked from 8:00am - 12:00 p.m. and then from 8:00 p.m. until 12:00 a.m. on the same day is a broken Shift within the meaning of clause 201 of the Agreement. I reject Mr Maher's argument.[28]
[19] Clause 201.2 of the Agreement defines a broken Shift. One element of that definition is that the shift must consist of two parts. A further element of that definition is that the shift "shall be completed within 12 hours". The plain and ordinary meaning of those words are clear. A shift is only a broken Shift within the meaning of clause 201 of the Agreement if the shift - which consists of 2 parts - is completed within 12 hours. The exception to the requirement that the shift is completed within 12 hours arises in cases of accident or unavoidable necessity. That exception was not argued to be relevant, and I do not consider it to be relevant, on the facts of this dispute. Mr Maher sought to avoid the obvious answer to Question 1 by pointing towards other clauses in the Agreement to argue that overtime is acceptable in extending shifts beyond their prescribed limits and that any time that exceeds the 12 hour limit must be classified as overtime.[29] Mr Maher argued that clause 201.2 was not the "be all and end all".[30] I reject those arguments. Subject to clause 201.2 being read having regard to its context and purpose, clause 201.2 can be described in summary terms for the purpose of answering Question 1 as the be all and end all. The period worked by Mr Maher in the morning and the period worked by Mr Maher in the evening on the days that are the subject of this dispute were not completed within 12 hours. They were completed within 16 hours. As such, the days in dispute where Mr Maher worked from 8:00am - 12:00 p.m. and then from 8:00 p.m. until 12:00 a.m. on the same day is not a broken Shift within the meaning of clause 201 of the Agreement.
[20] For the reasons explained above, Mr Maher was not entitled to the penalty rate specified at clause 201.5 of the Agreement when he worked one four hour shift in the morning (from 8:00 a.m. - 12:00 p.m.) and another four hour shift in the evening (from 8:00 p.m. - 12:00 a.m.) on the same day. I do not propose to answer the additional question proposed by the parties as to whether this arrangement contravenes clause 201.2 and / or clause 201.3. My answer that the arrangement is not a broken Shift within the meaning of clause 201.2 and no penalty arises under clause 201.5 of the Agreement resolves this particular dispute. The question of contravention as proposed by the parties is inapt and unnecessary.
[21] There is no factual dispute that there were occasions when Mr Maher worked two shifts without an interval of 8 - 10 hours between those shifts.[31] An example being the days where Mr Maher worked one four hour shift in the morning (from 8:00 a.m. - 12:00 p.m.) and another four hour shift in the evening (from 8:00 p.m. - 12:00 a.m.) on the same day. Mr Maher contends that he was entitled to be paid a penalty rate under clause 194.6 of the Agreement where this occurred.
[22] It is a fundamental principle when interpreting an enterprise agreement that words in the agreement are generally to be given their ordinary meaning, read within the instrument as a whole and in context.[32] The penalty rate under clause 194.6 of the Agreement is required to be paid when Operational Wages Employees are required to commence work on a new Shift within 10 hours of completing a Shift. (emphasis added). The word required has a plain and ordinary meaning. The dictionary definition of the word required includes necessary according to the rules or a particular purpose.[33] Having regard to the plain and ordinary meaning of the phrase required to commence work, I accept NSW Trains submissions that the penalty rate in clause 194.6 of the Agreement must only be paid when the new shift is worked - without the requisite interval - pursuant to an obligation. This accords with the plain and ordinary meaning of the phrase required to commence work in clause 194.6. There are no matters of context or purpose that suggest these words should be interpreted in any other way. I am satisfied that the penalty rate is not required to be paid when the new shift is worked - without the requisite interval - in the absence of any such obligation.
[23] Consideration of the Agreement as a whole reveals that part-time employees cannot be required to work additional hours. Clause 15.4 of the Agreement concerns part-time employees. In very summary terms, clause 15.4 of the Agreement imposes a high-level of prescription in relation to the working hours of part-time employees. This includes clause 15.4(f) of the Agreement, which is set out below:
A Part-Time Employee shall not be required to work additional hours beyond their agreed minimum hours, but may be offered the opportunity to do so. Where a Part- Time Employee agrees to work additional hours, payment for such hours will be a single time rates up the number of ordinary hours for an equivalent permanent Full- Time Employee.
[24] On first glance, it may appear that clause 15.4 (which is in Part A of the Agreement) is inconsistent with clause 203.4 (which is in Part C of the Agreement). Clause 1.3 of the Agreement provides that in the event of such inconsistency that Part C should prevail over Part A. However, as will be explained in answer to Question 4, I am satisfied that clause 203.4, and many of its surrounding clauses, such as clauses 203.1, 203.5, 203.6 and 203.7 do not apply to part-time employees. It is true those clauses use the word Employee or Employees. Those clauses do not use the word Full-Time Employee or Full-Time Employees. This is an example of an infelicity of expression that has long been understood to give way when the context, purpose and other legitimates aides of interpretation are considered.[34] As such, clause 15.4(f) of the Agreement is the appropriate clause to consider when determining whether part-time employees can be required to work additional hours. The plain and ordinary meaning of the words found in clause 15.4(f) confirm that part-time employees cannot be required to work additional hours. I accept NSW Trains submissions that clause 15.4(f) creates an unfettered right of a part-time employee to refuse to work additional hours and that is superior to the minimum standards in the National Employment Standards.[35]
[25] It follows that clause 194.6 of the Agreement has no application to the additional hours worked by a part-time employee. That is because a part-time employee does not work additional hours pursuant to an obligation. A part-time employee works additional hours by choice. The hours that are the subject of Mr Maher's claim for payment of the penalty rate in clause 194.6 of the Agreement were additional hours. For the reasons explained above, Mr Maher was not entitled to payment of the penalty rate in clause 194.6 of the Agreement for working the additional hours in dispute.
[26] Question 3 is similar to Question 2. The real difference being the interval and the actual penalty to be paid. Question 3 concerns clause 194.7 of the Agreement. I interpret clause 194.7 consistent with clause 194.6 of the Agreement.
[27] There appears to be some debate about whether Mr Maher worked additional hours without at least an eight hour break.[36] I do not need to resolve that dispute. Even if Mr Maher worked additional hours with fewer than eight hours between shifts, for the reasons explained above in answer to Question 2, Mr Maher was not entitled to payment of the penalty rate in clause 194.7 of the Agreement.
[28] The penalties in clause 203.6 and 203.7 of the Agreement are only required to be paid to an employee working a 19 Shift cycle (clause 203.6) or a 20 Shift cycle (clause 203.7). For the reasons explained below, I am satisfied that Mr Maher was not working a 19 Shift cycle or a 20 Shift cycle during the period in dispute.
[29] The Agreement does not contain a definition of a 19 Shift cycle or a 20 Shift cycle. Those words do not have a plain and ordinary meaning that can be easily applied in different contexts. Rather, those words are terms that seek to express the intention of these clauses in ways understood in the context of the relevant industry or relevant industrial relations environment. This has long been understood to be the case with terms found in many industrial instruments, such as awards or enterprise agreement. That is, the award or enterprise agreement uses terms that are well understood by the drafters of those instruments or participants in the relevant enterprise or industry, however, make little or no sense to a person without such industry knowledge. A recent Full Bench of the Commission[37] explained:
[28] Narrow or pedantic approaches to interpretation should be avoided. The search is for the meaning intended by the framers of the document objectively assessed, bearing in mind that the framers were likely of a practical bent of mind. They may have been concerned with expressing an intention in ways understood in the context of the relevant industry or industrial relations environment. The document can be read to give effect to its purpose, having regard to the industrial context despite inconsistencies which might give rise to a different reading. Construction of ambiguous terms should, where possible, favour a sensible and practical industrial result.
[30] In seeking to interpret clauses 203.6 and 203.7, it must be emphasised that the resolution of a disputed construction of an enterprise agreement will turn on the language of the agreement having regard to its context and purpose.[38] The context includes the enterprise agreement as a whole (and other matters).
[31] Clause 203 is found in Section 7 of Part C of the Agreement. The provisions of Part C apply only to NSW TrainLink employees.[39] Section 7 of Part C applies to a group of such employees (which includes Mr Maher).[40] The heading to clause 203 is overtime. The clauses that precede clauses 203.6 and 203.7 are clauses 203.1 - 203.5.
[32] Clause 203.1 provides that all time worked in excess of the hours prescribed within Clause 25 (Hours of Work) shall be overtime. (emphasis added).
[33] Clause 25 of the Agreement is found in Part A of the Agreement. Part A has organisational wide application.[41] Clause 25 only concerns the hours of work of full-time employees. This is clear from clause 25.2, which provides that the ordinary hours of work shall be 76 hours per fortnight (excluding meal breaks). 76 hours per fortnight is the ordinary hours of work of a full-time employee. Clause 15.4(a) of the Agreement confirms that 76 hours per fortnight cannot be the ordinary hours of work of a part-time employee. The maximum ordinary hours of work for a part-time employee under the Agreement is 35 hours, which equates to 70 hours per fortnight.
[34] Clause 25.3 does not suggest any other meaning. Clause 25.3 is a clause that 'grandparents' the ordinary hours of a full-time employee whose ordinary hours are less than 76 hours per fortnight.
[35] Clause 25.2 also places a limit on how many shifts the 76 hours per fortnight can be divided into. The limit is 10 shifts. This establishes a nominal shift length of 7.6 hours per day worked 10 shifts each fortnight. In a four week period, such an employee would work 20 shifts of 7.6 hours in length, which totals 152 ordinary hours in a four week period.
[36] Clause 25.6 refers to a 4 week work cycle. (emphasis added). Clause 25.6 provides that the ordinary hours of 152 may be worked in a 4 week work cycle to enable Employees to have an additional day off during the cycle by accruing additional working time on other working days. (emphasis added). Clause 3 of the Agreement contains a definition of an Accrued Day Off (ADO), which is the day not being a holiday, that an Employee has off duty arising from the working of a 19 day month. (emphasis added) I am satisfied that the reference in clause 25.6 to an additional day off is another example of an infelicity of expression in what is a very lengthy and complex enterprise agreement that is the product of extensive and hard bargaining. It is apparent that clause 25.6 is intended to facilitate employees working their ordinary hours over the 4 week work cycle so that they work more than the nominal shift length of 7.6 hours and consequently have a singular ADO over the 4 week work cycle. In a four week period, such an employee would work 19 shifts of 8 hours in length to total 152 ordinary hours and have a singular ADO in that four week period. The definition of an ADO in the Agreement confirms that the ADO arises from the working of a 19 day month.
[37] A part-time employee cannot work their ordinary hours in such a manner that they work 20 shifts of 7.6 hours in length, which totals 152 ordinary hours in that four week period or 19 shifts of 8 hours in length to total 152 ordinary hours and have a singular ADO in that four week period. Either arrangement exceeds the maximum ordinary hours of a part-time employee under the Agreement (clause 15.4(a)).
[38] The reference to clause 25 in clause 203.1 of the Agreement is instructive. It is intended to make clear that the clauses following clause 203.1 are only applicable to the hours worked by a full-time employee that are in excess of their ordinary hours. If it were intended that clause 203 was to regulate payment for hours in excess of the ordinary hours of a full-time employee and the agreed hours of a part-time employee, there would no need for clause 203.1, and most definitely no need for the reference to be made to clause 25 in clause 203.1.
[39] Another contextual matter that points towards an overall conclusion that clauses 203.6 and 203.7 do not apply to a part-time employee is that clause 203.5 refers to the concept of an excess shift. This is plainly to describe the hours worked that are in addition to ordinary hours. By contrast, clause 15.4 describes the hours worked that are in addition to agreed hours / agreed minimum hours as additional hours. In effect, the Agreement appears to describe what is commonly referred to as overtime in different terms for full-time employees and part-time employees. Overtime is described for full-time employees in clause 203.5 as an excess shift whereas overtime is described for part-time employees as additional hours. The clauses that immediately follow clause 203.5 - namely, 203.6 and 203.7 - use the terminology of excess shifts to describe what might be ordinarily referred to as overtime. Those clauses do not use the terminology in the Agreement that describes what might ordinarily be referred to as overtime worked by part-time employees - additional hours. This is another contextual indicator that clauses 203.6 and 203.7 are not intended to apply to part-time employees.
[40] Clause 203.4 provides that employees may be required to work reasonable overtime subject to the conditions set out in this clause and employees shall work overtime in accordance with such requirement. (emphasis added). As explained, the employees that are the subject of the conditions in clause 203 are full-time employees that work a 19 Shift cycle and full-time employees that work a 20 Shift cycle. It does not include part-time employees. Part-time employees do not work 'overtime' subject to the conditions set out in clause 203. These matters demonstrate that clause 203.4 is not intended to apply to part-time employees.
[41] Moreover, clause 203.5 defines an excess shift. The reference to a 19 day four week cycle in clause 203.5 clearly means the same thing as a 19 Shift cycle in clause 203.6. The reference to a 20 day four week cycle in clause 203.5 clearly means the same thing as a 20 Shift cycle in clause 203.7.
[42] The penalty in clause 203.6 is only required to be paid to an employee that is working a 19 Shift cycle. Having regard to the contextual matters above, I am satisfied that such an employee is a full-time employee working 19 shifts of 8 hours in length and having a singular ADO in a four week period.
[43] The penalty in clause 203.7 is only required to be paid to an employee that is working a 20 Shift cycle. Having regard to the contextual matters above, I am satisfied that such an employee is a full-time employee working 20 shifts of 7.6 hours in length in a four week period.
[44] Having regard to the contextual matters above, I am satisfied that clause 203.6 and 203.7 use the phrase 19 Shift cycle and 20 Shift cycle because those are terms that are understood in the context of the relevant industry or relevant industrial relations environment. Those terms do not encompass part-time employees or the additional hours worked by Mr Maher that is the subject of this dispute. As Mr Maher was not working a 19 Shift cycle or a 20 Shift cycle, there is no entitlement to the penalty rate in either clause 203.6 or 203.7.
[45] For the reasons explained above, the dispute is resolved with the questions answered below.
Are any of the Additional Hours worked by the Applicant and the Applicant's ordinary hours on the same day collectively a broken Shift within the meaning of clause 201 of the Agreement? If so, do any broken Shifts:
Is the Applicant entitled to time and a quarter pay under clause 194.6 of the Agreement for working the Additional Hours?
Is the Applicant entitled to overtime rates pursuant to clause 194.7 for working the Additional Hours, assuming that they are less than 8 hours apart from another Shift?
Is the Applicant entitled the penalties in clause 203.6 or 203.7 of the Agreement for working the Additional Hours?
(a) Part-Time Employees shall be engaged to work a regular number of hours per day (for no less than 15 hours per week and up to 35 hours per week). The agreed hours shall be the contract hours of work.
(b) A Part-Time Employee's contract hours can only be varied in writing, by agreement, between the Employee and the Employer.
(c) The daily starting and finishing times will be agreed at the commencement of employment except where those times vary according to the roster that needs to be worked.
(d) A Part-Time Employee shall be provided with a letter of employment stipulating the basis of their employment, and their daily and weekly hours of work.
(e) A Part-Time Employee will be rostered for a minimum 3 hours on rostered Shifts, unless varied by mutual agreement. Where a Part Time Employee I rostered for 3 hours on a shift, the Employee may request that the shift be increased to 4 hours. The Employer will consider reasonable proposals based on demonstrated hardship.
(f) A Part-Time Employee shall not be required to work additional hours beyond their agreed minimum hours but may be offered the opportunity to do so. Where a Part-Time Employee agrees to work additional hours, payment for such hours will be at single time rates up to the number of ordinary hours for an equivalent permanent Full-Time Employee.
(g) Where additional hours exceed the daily ordinary hours or the weekly ordinary hours for an equivalent permanent Full-Time Employee the applicable overtime penalty will be applied to the excess hours worked.
(h) Part-Time Employees will be entitled to pro-rata leave and pay conditions relative to the comparable Full-Time equivalent positions.
(i) Part-Time Employees shall be paid at the same hourly rate of a Full-Time Employee in the same classification and expenses and allowances for their classification as prescribed in this Agreement.
(j) Part Time Conversion
(i) A Part-Time Employee who has regularly worked more than their specified contract hours for a continuous period of 6 months has the right to request that their contract be updated to reflect their regularly worked hours.
(ii) A Part-Time Employee who has regularly worked 35 hours or more per week for a continuous period of 6 months has the right to request that their contract be converted to one of Full-Time employment.
(a) accepts a promotion;
(b) requests and is transferred to another position; or
(c) is redeployed
The exceptions outlined in this sub-clause will not apply to Sydney Trains Employees who are, and continue to be, employed in positions covered under the Train Controllers and Area Controllers Classification Structures. The ordinary hours of work for area controllers shall be 72 hours per fortnight divided into not more than 9 shifts.
Time paid to all Employees except Train Crew, for travelling, waiting or walking when not carrying an Employer's kit shall not be taken into account for the purpose of calculating time in excess of ordinary hours for overtime purposes when it eventuates:
(b) after actual work finishes on any straight Shift; or
except when at a foreign location, in which case a minimum of 7 hours shall apply (at rest accommodation).
a foreign location as result of disrupted services, shall be paid at the rate of single time until the commencement of their next Shift. This time shall not be used in the calculation of overtime.
(a) when changing Shifts, in which case a minimum of 8 hours shall apply.
(b) when returning to home station, in which case the provisions of Clause 205 (Travelling Time) shall apply.
notified once or more often that they will not be required till later, shall, after 10 hours have elapsed from the time at which they were originally booked or directed to attend, be allowed, if they so desire, a further period of 8 hours for rest before the time at which they are to take up duty again.
(a) if commenced prior to the expiration of 11 ordinary hours of work shall be paid at time and one half;
(b) if commenced after 11 or more ordinary hours of work shall be paid for at double time.
paid for the first 2 excess Shifts in a fortnight at the rate of time and one half for the first 10 hours and 36 minutes and double time thereafter. The third or the Saturday portion of any excess Shift in a fortnight shall be paid at the rate of double time.
in the pay fortnight and an Employee resumes duty during the currency of the pay fortnight, after having been off duty on paid holiday leave, the leave shall be taken into account for the purpose of determining whether or not excess Shifts payable at overtime rates have been worked in the pay fortnight.
203.9 When the ordinary hours of duty are worked on 10 or on a less number of Shifts in the pay fortnight and an Operational Wages Employee takes paid annual leave, sick leave, and/or carer's leave during the fortnight, the leave will be taken into account for the purpose of determining whether or not excess Shifts payable at overtime rates have been worked in the pay fortnight.
203.10 Paid leave which is taken after a certain number of Shifts have been worked in
a pay fortnight and which leave continues until at least the end of the pay fortnight shall not be taken into account in any way whatsoever for the purpose of ascertaining whether or not excess Shifts have been worked in the pay fortnight.
[1] Construction, Forestry, Maritime, Mining and Energy Union & others v Falcon Mining Pty Ltd [2022] FWCFB 93 at [59] - [61] (Falcon Mining).
[2] Falcon Mining at [62], [72], [81].
[3] Australian Rail, Tram and Bus Industry Union v Keolis Downer Northern Beaches Pty Ltd [2025] FWCFB 240 at [27]-[28].
[4] Paragraph 10 of the Statement of John Sullivan dated 15 August 2025 (Sullivan Statement), Digital Hearing Book (DHB) page 538, page 544.
[5] Paragraph 10 of the Sullivan Statement, DHB page 538.
[6] Paragraph 10 of the Sullivan Statement, DHB page 538.
[7] Paragraph 10 of the Sullivan Statement, DHB page 538, 544 - 549.
[10] Paragraph 13 of the Sullivan Statement, DHB page 538.
[13] Paragraph 18(c)(v) of the Sullivan Statement, DHB page 539.
[14] Paragraph 21(e) of the Sullivan Statement, DHB page 539, 558 - 566.
[15] Paragraphs 32 - 33 of the Sullivan Statement, DHB page 541.
[16] Paragraph 6 of the Respondent's Outline of Submissions dated 15 August 2025 (RS), DHB page 269.
[17] Paragraph 21(f) of the Sullivan Statement, DHB page 540.
[18] Paragraph 21(f) of the Sullivan Statement, DHB page 540.
[19] Paragraph 21(f) of the Sullivan Statement, DHB page 540.
[20] Paragraph 21(f) of the Sullivan Statement, DHB page 540.
[21] Paragraph 21(f) of the Sullivan Statement, DHB page 540.
[22] Paragraph 21(f) of the Sullivan Statement, DHB page 540, 558 - 566.
[24] Paragraph 31 of the Statement of Nikki Louise Dover dated 15 August 2025 (Dover Statement), DHB page 590.
[25] DHB pages 246 - 247, RS DHB page 292.
[28] See, for example, DHB pages 29 - 32, 251 - 252.
[32] Australian Rail, Tram and Bus Industry Union v Keolis Downer Northern Beaches Pty Ltd [2025] FWCFB 240 at [27].
[34] Kucks v CSR Limited (1996) 66 IR 182 at 184.
[37] Australian Rail, Tram and Bus Industry Union v Keolis Downer Northern Beaches Pty Ltd [2025] FWCFB 240.
[38] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114].
Printed by authority of the Commonwealth Government Printer
Mr William Finlay Maher
NSW Trains Trading AS NSW TrainLink [2025] FWC 3884
(1996) 66 IR 182