The Commission has before it a notification brought by The Australian Workers' Union, New South Wales branch ("AWU") pursuant to s 130 of the Industrial Relations Act 1996.
The gravamen of the dispute is this. The AWU represents workers who are employed with the Department of Planning and Environment ("Department"). They are "seven day roster workers" within the meaning of the Crown Employees (Department of Planning and Environment - National Parks and Wildlife Service) Field Officers and Skilled Trades Salaries and Conditions [Award] 2022 ("Award"). As their title suggests, the employees work to a seven day roster.
Pursuant to cl 13.4.7(vii) of the Award, field officers, senior field officers and tradespersons receive a loading of 17% of their annual base salary to work a maximum of 45 combined weekend days, being Saturdays and Sundays, and five public holidays in lieu of all other penalty rates. Clause 23.1.2 of the Award allows for seven day roster workers to receive an extra 10 days annual leave. Clause 13.4.7(x) of the Award provides for loadings to be paid for weekend and public holiday work beyond that contemplated in the 17% loading.
Clause 13.4.9 of the award is titled "Set Pattern of Hours". Clause 13.3.7 provides that a roster of hours and days must be set and agreed to in writing two weeks before the settlement period starts, noting that the "settlement period" is the roster period. Clause 13.4.9(ii) provides that the "set pattern of hours will be decided and agreed to by the employee and their supervisor at the time each four week roster is determined".
In short, the AWU contends that the Department is making variations to rosters in a manner not permitted by the Award and for the "improper purpose of deliberately bypassing penalty rates which would otherwise apply". It seeks that the Commission make the following recommendations:
"1. The respondent refrain from altering employees' rosters for the purposes of avoiding a penalty rate for work completed on public holidays (including that the respondent refrain from requiring employees to take an ADO, REC [sic] leave on a Public Holiday); and
2. Employees who are at any time rostered to work on a public holiday but not required to attend, have the day off and receive ordinary rates of pay."
It is convenient to consider the case brought by the AWU in the context of those proposed recommendations.
In the first place, there is an assumption underpinning proposed recommendation 1 that rosters are being altered for certain purposes. This gives rise to a consideration of the evidence that has been led as to how rosters are in fact developed within the Department.
Deon van Rensburg, the Acting Executive Director Park Operations Coastal with the Department, provided a statement in these proceedings. In that statement he described three steps undertaken by roster managers in the roster preparation process. First, a template roster is populated projecting a draft roster for six to twelve months, which he described as a "template roster". Second, a roster is issued four weeks from the commencement of the settlement period, which he described as a "draft roster". Finally, a final roster is issued with two weeks' notice from the settlement period commencing, which he described as the "approved roster". Mr van Rensburg went on to amplify that evidence from pars 23 to 45 of his statement.
This evidence was not significantly or indeed at all challenged by the AWU's evidence. Indeed, in many respects, it was consistent, with the AWU's witnesses often referring to the "draft roster" in their written and oral evidence.
The AWU contended that cl 13.1 of the Award requires the Department to take into account the reasonable needs of employees. Some of the evidence led by the AWU's witnesses described the impact of them on changes introduced to either what Mr van Rensburg referred to as the template roster or the draft roster, before the completion of the approved roster.
Shay Wahrlich is a field officer employed with the Department. In his statement in these proceedings he deposed that having a draft roster in advance allows him to plan family events around his work commitments and to plan for travel to the nearest city, such as Canberra, for family appointments. He stated that the general predictability of his roster allows him to maintain a healthy work-life balance and manage his responsibilities effectively.
David Mackenzie, a grade 4 field officer employed with the Department, referred to problems for his family and himself where roster changes are made only two weeks ahead.
Robert Tito, a field officer employed with the Department, gave evidence that he cares for elderly family members and last minute changes to his roster affect his ability to do so.
I observe that cl 13.1 is not confined to addressing the reasonable needs of employees. It refers to optimising work effectiveness and the fulfilment of the reasonable needs of employees. Moreover, nothing in cl 13.1 requires that the individual needs of all employees will be accommodated in every roster. Under cross-examination today, Mr van Rensburg alluded to some of the difficulties in taking into account the wishes of each employee.
More particularly though, there is no evidence that there are changes being made within a settlement period and/or with less than two weeks' notice. The concerns that are raised by the employees in relation to the development of rosters seem to be those contemplated by the Award itself. That is, the finalisation of rosters two weeks prior to the start of the relevant roster period.
It is now well accepted that awards of the Commission are presumed to set fair and reasonable terms and conditions of employment: Applications for Variations to Crown Employees (Police Officers - 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040 at [32(2)].
The evidence of the AWU's witnesses seems to confirm that changes are made to the draft roster which goes to create the approved roster, which is causing some inconvenience and upset for the employees. Nothing in the evidence, though, suggests that in this respect there has been any breach of the Award.
The next point arising from the first proposed recommendation is that it assumes that rosters are being changed for the purposes of avoiding a penalty rate for work completed on public holidays. I have some difficulty understanding this premise in light of the evidence which was led during the proceedings today.
Mr Wahrlich, Mr Tito and Mr van Rensburg all gave evidence to the effect that the employees are paid for 140 hours in each settlement period regardless of when the hours are worked. Moving an ADO to a public holiday does not seem to me to result in an employee becoming disentitled to a penalty rate. It may be that the concern of the AWU's members is that expressed by Mr Tito in his statement in reply, that employees are not able to achieve the maximum public holidays for which the 17% loading is paid, so as to entitle them to receive payment of the applicable penalty rates for any additional work performed on a public holiday.
If this is the case, I consider again the evidence of Mr van Rensburg, who deposed that the Department strives to allocate work fairly and efficiently and to avoid a situation where one employee is working their maximum allocation of week days and public holidays and another is working barely any, in circumstances where both employees are receiving the same 17% loading.
Mr van Rensburg also deposed that there are few locations across the Department's operations where seven day roster workers receiving a 17% loading "get close to working the required 45 weekends and 5 public holidays". He stated that across the eight branches encompassing the Department's services the overall average of weekends being worked is 16.44 days and the overall average of public holidays is 3.55. If the employees' concern is that the changes to rosters are impacting on their ability to reach the maximum days for which the 17% loading compensates them, so that they can receive penalty rates for additional public holiday or weekend work, this data suggests that changes to rosters are unlikely to have a great bearing on what the employees will ultimately receive.
The question also arises as to what extent this is fact a problem. Mr Tito deposed that when he exhausts the maximum days contained in the Award he is occasionally "if not often" given an opportunity to work additional weekend days or public holidays with penalty rates applied. Mr Wahrlich deposed that when he has exceeded 45 weekend days or five public holidays in a calendar year he has been given the opportunity to work additional weekend days or public holidays at penalty rates.
I am not satisfied that the evidence supports that employees are being disentitled to any particular entitlement. I have some reservations in relation to recreation leave to which I will return.
I am mindful that Mr Tito gave evidence today regarding an incident where he worked a sixth public holiday. This was a day that would have otherwise have been an ADO. As I apprehended his evidence, he initially claimed to have been required to work on a public holiday for which he gave up his ADO. But during the course of further cross-examination he confirmed that he could have refused to work and have maintained the ADO but it was his choice to work so as to take up the higher rate of pay that he would receive for working on the public holiday. This evidence does not suggest that great injustice is being visited upon employees.
The AWU placed some reliance on ss 114 and 116 of the Fair Work Act 2009. It is not necessary that I read out the terms of those provisions. The effect of the submissions was that the provisions operate to prohibit the Department changing rosters to avoid an employee being paid for a public holiday.
I am not persuaded that that is a correct interpretation of the legislation. In this regard, I have in mind the decisions to which the Department referred me, namely, Dowsett v SouthLink Pty Limited [2013] FWC 4978 at [17] and, more compellingly, Queensland Nurses' Union of Employees v Ramsay Health Care Australia Pty Ltd [2016] FCA 1486 at [23], [26], [35], [36], [38] and [39]. I find the comments in the latter case to be particularly apposite to the circumstances of this case.
I would add this. As I have already indicated, the Award contemplates that seven day roster workers will be paid a loading of 17% for working a maximum of a certain number of weekend days and public holidays. In addition, they receive an extra 10 days of annual leave to that received by day workers. I can take notice of the fact that it is common that shift work provisions normally require that a shift worker will receive an extra five days of annual leave a year.
The Department submitted with some force that the arrangements contemplated by the Award would seem to anticipate the 10 public holidays that an employee would expect to receive each year. Five of these are incorporated in the 17% loading, with the additional five days of recreation leave arguably anticipating the other five.
In short, the employees receive payment or extra recreation leave to provide for all public holidays each year. There is some force to the Department's submission that requiring any additional time off or payment would be in the nature of double dipping. I note in this regard the evidence of Mr van Rensburg that on average the employees are being paid for working more public holidays than they in fact work.
There is a final matter in respect of proposed recommendation 1 in that there is no entitlement to work for penalty rates. The very concept of a penalty rate, as its name suggests, is to discourage certain work practices, not to create an extra entitlement for employees. Things such as penalty rates for working on weekends and public holidays are designed to discourage employers from rostering employees on those days and to give them their weekends and public holidays. I do not accept as a premise that an employee has an entitlement to work weekends and public holidays so as to maximise their return.
As to the second proposed recommendation, many of the same considerations arise. The question arises, particularly, as to what does it mean to be rostered to work on a public holiday and what roster are we referring to? There is no evidence, as I say, that the approved rosters are changed so that employees are rostered to work on a public holiday but are not required to attend. If the employee is paid for the 140 days for which they are rostered to work in that settlement period in accordance with the Award, I cannot see why they would get extra time or payment for not being required to attend on a public holiday.
There is only one matter that requires attention. The case presented by the AWU is premised, in part, on the fact that its members are being directed to take recreation leave to substitute for public holidays that they would otherwise work.
There is limited evidence in this regard. Mr Mackenzie stated that he had been requested to take recreation leave in place of a public holiday but he had not done it. He had never been required to take recreation leave.
In fact, the strongest evidence that there may in fact be situations where employees are so directed came from the Department's witness, Mr van Rensburg. He gave evidence that he was anecdotally aware that some rostering managers had directed employees to take recreation leave. In his view that was not appropriate.
I put this to the Department during today's hearing. The Department conceded that employees should not be directed to take recreation leave to avoid having to work on a public holiday, or to "cover for a public holiday", to adopt its language.
I was told that communications had been prepared during the course of these proceedings aimed at addressing these and other matters. I think it is appropriate that a recommendation be made that the Department issue appropriate communications to its managers to ensure that this practice does not continue.
Accordingly, pursuant to s 136(1)(a) of the Industrial Relations Act 1996, I recommend that the Department issue to its rostering managers, however described internally, a communication to the effect that employees covered by the Award are not to be directed to take recreation leave to cover for a public holiday.
Otherwise, I am not persuaded that the Commission's intervention is required in these proceedings and the application is otherwise dismissed.
Damian Sloan
Commissioner
[2]
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Decision last updated: 05 December 2023
Parties
Applicant/Plaintiff:
The Australian Workers' Union, New South Wales
Respondent/Defendant:
Industrial Relations Secretary in respect of the Department of Planning and Environment