Fair Work Act 2009

s.739 - Dispute resolution

Section 739 Dispute about a matter arising under the enterprise agreement - whether certain shift workers are 'continuous shift workers' such as to be entitled to an extra week's annual leave - found that workers are not currently continuous shift workers under the terms of the enterprise agreement

• [1] This decision relates to a dispute between Australian Workers' Union (AWU) and Downer EDI Works Pty Ltd (Downer) regarding whether certain employees of Downer meet the definition of continuous shift worker in the Downer EDI Works Pty Ltd Victorian Road Maintenance Enterprise Agreement 2024 so as to be entitled to an extra week's annual leave.

• [2] Downer is contracted to provide the maintenance, upkeep and incident response services for key toll roads and tunnels in Melbourne including CityLink and the West Gate Tunnel. These services are provided 24 hours a day, 7 days a week. To perform these services, Downer engages two groups of workers - the Incident Response Crew and the Civil Maintenance Crew (together, the relevant employees). Both crews currently work on shift rosters that rotate through seven days, including work on Saturdays, Sundays and public holidays.

• [3] The relevant employees are covered by the Downer EDI Works Pty Ltd Victorian Road Maintenance Enterprise Agreement 2024 (the 2024 EA). The relevant employees are members of the AWU. The AWU is also covered by the 2024 EA.

• [4] Prior to 2022, some of the relevant employees were engaged by another employer performing the same work, under a different enterprise agreement. Under the previous employer, the relevant employees were considered continuous shift workers and received an additional week's annual leave.

• [5] The relevant employees were engaged by Downer when Downer took over the contract in July 2022, and at that stage, employees became covered by the predecessor to the 2024 EA. Downer has never recognised the relevant employees as continuous shift workers and has never provided the relevant employees with an additional week's leave on that basis.

• [6] The 2024 EA provides that continuous shift workers are entitled to an additional week's leave in accordance with the Fair Work Act 2009 (the Act).

• [7] Clause 11.1(g) of the 2024 EA provides the following definition of continuous shift worker:

11.1(g) Continuous shiftworker (Six (6) shift worker) means an employee who is rostered to work on shifts that are rostered 24 hours a day, six days a week; and is regularly required to work those shifts; and regularly works on Sundays and public holidays.

• [8] Clause 19.2(b) of the 2024 EA confirms that continuous shift workers as defined in 11.1(g) are entitled to an extra week's annual leave in accordance with National Employment Standards:

19.2(b) Employees are entitled to four weeks (152 hours) of annual leave in respect of each year of service... A continuous shift worker is entitled to an additional week (38 hours) of annual leave in each year of service as a continuous shift worker in accordance with s 87(1)(b)(ii) of the Act.[1]

• [9] The overarching matter in dispute between the parties is whether the relevant employees are 'continuous shiftworkers' as defined in 11.1(g) of the Agreement, such as they would be entitled to an extra week's annual leave in accordance with clause 19.2(b) of the 2024 EA and as provided for in s87(1)(b)(ii) of the Act.

• [10] It is common ground that the dispute is before the Commission as a result of the operation of the dispute resolution procedure in clause 30 of the 2024 EA , and as a result the Commission has jurisdiction to determine the dispute.

• [11] There are a number of elements to the dispute. Firstly, the parties are in dispute about the meaning of 11.1(g), in particular the phrase "regularly works on Sundays and public holidays." Secondly, the parties are in dispute regarding how to calculate the number of Sundays and public holidays worked by the relevant employees. Downer argues only Sunday day shifts and night shifts commencing on a Sunday should count towards Sundays worked. The AWU argues that all shifts that have some work on a Sunday should count, and if two shifts are worked on a Sunday, both shifts should count separately as a Sunday worked. Accordingly, the parties have agreed on the following questions to resolve the dispute:

(1) Are employees of Downer EDI Works Pty Ltd who:

(a) are covered by the Downer EDI Works Pty Ltd Victorian Road Maintenance Enterprise Agreement 2024 (2024 EA); and

(b) perform work pursuant to the CityLink contract; and

(c) work on the Civil Maintenance Crew roster or the Incident Response Crew roster,

'continuous shiftworkers' as defined in clause 11.1(g) of the 2024 EA?

(2) Do the Saturday Night Shifts that are rostered from 6pm to 6am count towards the total number of Sundays required to be worked by an individual employee to be classified as a 'continuous shiftworker' under the 2024 EA?

(3) If the answer to (2) is yes, where an individual employee in (1) is rostered consecutively on a Saturday Night Shift from 6pm Saturday to 6am Sunday and then a Sunday Night Shift from 6pm Sunday to 6am Monday, do both the Saturday Night Shift and Sunday Night Shift count separately towards the total number of Sundays required to be worked by an individual employee to be classified as a 'continuous shiftworker' under the 2024 EA?

• [12] In answering these questions and resolving this dispute, I have broken this decision into two parts:

• Part 1: I consider and determine what constitutes a continuous shift worker as defined in 11.1(g) of the Agreement;

• Part 2: I consider whether the relevant employees meet the definition of continuous shift worker in 11.1(g).

Part 1 - What constitutes a continuous shiftworker as defined in 11.1(g)?

• [13] In resolving this dispute, I need first to determine what constitutes a continuous shiftworker as defined in 11.1(g) of the Agreement. This determination requires me to interpret the meaning of clause 11.1(g).

• [14] For convenience I reproduce the provision here:

11.1(g) Continuous shiftworker (Six (6) shift worker) means an employee who is rostered to work on shifts that are rostered 24 hours a day, six days a week; and is regularly required to work those shifts; and regularly works on Sundays and public holidays.

• [15] It is uncontested that the relevant employees are rostered 24 hours a day, seven days a week. While it is clear the relevant employees are seven-day shift workers (not six-day shift workers) neither side considered this consequential to this dispute.

• [16] The key matter for interpretation is what is meant by the phrase "regularly works on Sundays and public holidays". Before considering this phrase further, I will set out the principles of interpretation on which I am relying.

• 1.1 Principles for interpreting enterprise agreements

• [17] The Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2] (AMWU v Berri) considered the key principle of interpretation in detail at paragraph [114]. I rely on the principles outlined in AMWU and Berri. Below I summarise the key principles of interpretation that I have had reference to in determining the construction of 11.1(g):

• • The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context.[3]

• • The words should be interpreted in their industrial context, in the light of the customs and working conditions of the industry.[4]

• • Context includes legislative framework and the history of the provision or phrase. As described by his Honour, Burchett J in the Full Court decision Short v FW Hercus Pty Ltd[5]:

"The context of an expression may ... be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment."

• • The task of interpreting an agreement does not involve "rewriting the agreement to achieve what might be regarded as fair or just outcome. The task is always one of interpreting the agreement produced by the parties."[6]

• • The common intention of the parties is to be identified objectively by reference to what a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.[7]

• • If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstances will be admissible to aid the interpretation of the agreement.[8]

• • The admissibility of evidence of surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties. Evidence of objective background facts may include, amongst other things, "notorious facts of which knowledge is to be presumed."[9]

• • Rules of construction are rules of common sense.[10]

1.2 History of phrase "regularly works on Sundays and public holidays"

• [18] The parties acknowledged that the phrase "regularly works Sundays and public holidays", in and of itself, is open to multiple meanings, and therefore the context and history of the phrase is important for construing the meaning of the provision. In submissions both parties referred to other Commission decisions that they said should be relied upon to interpret the phrase "_regularly works Sundays and public holiday_s" at 11.1(g). In particular, the following two cases are important to this dispute.

Elizabeth O'Neill v Roy Hill Holdings Pty Ltd [2015] FWC 2461 (Roy Hill),

• [19] Roy Hill concerned an applicant who was rostered to work Sundays and public holidays as part of a continuous shift operation. In this decision Commissioner Williams considered, amongst other things, whether the applicant regularly worked on Sundays and public holidays in relation to s87(3) of Fair Work Act such as to entitle her to the extra week's annual leave. Commissioner Williams considered a number of earlier decisions and concluded that an employee 'regularly works on Sundays and public holidays' if they have worked at least 34 Sundays and 6 public holidays in a year (the Roy Hill formula). This formula was derived from previous cases, including the 1965 decision Re Iron and Steel Works Employees (Australian Iron and Steel Pty Ltd - Port Kembla) Award and Another Award[11] (the Steel Case) where His Honour, Richards J, concluded that a 7-day shift worker, working five days a week, would normally work 5/7ths of all available Sundays in a year (taking annual leave into account). As the applicant in Roy Hill only worked 31.35 Sundays and 6 public holidays per year, the Commissioner concluded she did not regularly work Sundays and public holidays and was therefore not a continuous shift worker.

• [20] Roy Hill has been followed in a number of decisions by the Commission.

Four yearly review of modern awards - Registered and Licensed Clubs Award 2010 [2020] FWC FB 4762 (The Clubs Award Decision)

• [21] In this decision, the Full Bench of the Commission was dealing with an application by employers to vary the Registered and Licensed Clubs Award 2010 in relation to the entitlement to five weeks' annual leave. In particular, the application sought that the award be varied to specify that for a shift worker to receive an additional week's leave they should work the Roy Hill formula of 34 Sundays and 6 Public Holidays. The Full Bench rejected that claim and made the following comments:

"[17] As to the specification of the number of Sundays and public holidays which must be worked in a year to qualify as someone "who is regularly rostered to work on Sundays and public holidays", we reject the proposition that the single member decision in O'Neill v Roy Hill Holdings Pty Ltd, which concerned the meaning of that expression in s 87(3) of the FW Act, is determinative of the position here. Section 87(1)(b)(i), which is the relevant statutory provision, does not require that a person be "regularly rostered to work on Sundays and public holidays" in order to qualify for the extra week's annual leave. Rather, the provision leaves it to the award to determine who qualifies. Nothing has been put before us to persuade us that the expression "regularly rostered to work on Sundays and public holidays" used in clauses 3.1 and 30.1 the Clubs Award, having regard to the industrial historical context of the award, necessarily means 34 Sundays and 6 public holidays. That calculation is derived from a continuous shift work system where it is assumed that a shift worker works an equal number of shifts on each of the seven days of the week, and takes its context from manufacturing and engineering operations where a continuous level of output is sought to be maintained. The club industry, by contrast, faces far greater patronage at the latter end of the week and on weekends, and rosters staff accordingly. There is no proper basis for the assumption that an employee will work an equal number of shifts on each day of the week.

[18] For example, a club employee may be likely to work more Sundays than Mondays. Many public holidays fall on Mondays. That may result in the employee working more than 34 Sundays in a year, but less than 6 public holidays. On [Club Australia Industrial's] approach, that person does not regularly work Sundays and public holidays. The justification for that approach is not readily apparent."

• 1.2 AWU Submissions regarding "regularly works on Sundays and public holidays"

• [22] The AWU submits the Clubs Award Decision establishes that the industrial context 11.1(g) is paramount in construing the phrase 'regularly works Sundays and public holidays' and the Roy Hill formula is "not fit for purpose on the current facts."[12] The AWU submits that the Roy Hill formula is not appropriate or relevant to the interpretation of 11.1(g). This is because Roy Hill is based on previous decisions dating back to the 1965 Steel Case. The AWU submits that the industrial context of the Steel Case (and Roy Hill) is substantially different to the industrial context of the relevant employees. The AWU points to the following differences:

• Roy Hill and the Steel Case involved 24/7 continuous output for manufacturing and/or engineering industry, which is different to the work done by Downer and the relevant employees.

• The Steel Case involved a roster of 5 days x 8 hours worked across any 7 days of the week, which gave rise to the 5/7 equation that the Roy Hill formula is based upon. In comparison, the relevant workers are engaged three or four days x 12 hours worked across any 7 days of the week.

• Workers in the Steel Case and Roy Hill worked an equal number of shifts on each of the 7 days of the week. The AWU submits that this is not the case with the relevant employees.

• The number of public holidays at the time of the Steel Case was 10 as opposed to the legislated 13 public holidays.

• [23] The AWU contends that in determining what "regularly works on Sundays and public holidays" means for the 11.1 (g) of the Agreement, it is appropriate to adjust Roy Hill formula to meet the current industrial context of the relevant employees.

• [24] In relation to the Civil Maintenance Crew an adjusted formula would reflect that the relevant employees work 4 x 12 shifts over 7 days as opposed to 5 x 8-hour shifts over 7 days. Accordingly, the adjusted formal would require the relevant employees to work 4/7th of all Sundays and public holidays to qualify as 'continuous shift workers" within the meaning of 11.1(g). This would mean Civil Maintenance workers rostered to work 29 Sundays a year, and 7 public holidays would meet the definition in 11.1(g).

• [25] In relation to the Incident Response Crew an adjusted formula would reflect that the relevant employees work between 3- 4 days x 12-hour shifts over 7 days. An adjusted formula would require an Incident Response Crew member to work 3/7th of all Sundays and public holidays. This would mean the Incident Response employees rostered to work 22 Sundays a year and 5 public holidays a year would meet the definition of 11.1(g).

1.4 Downer Submissions regarding "regularly works on Sundays and public holidays"

• [26] Downer submits the phrase "regularly works on Sunday and public holidays" is one of long standing industrial usage, and has accepted meaning - namely the Roy Hill formula - 34 Sunday shifts and 6 public holidays over a 12-month period. Downer rejects the AWU submission that the Roy Hill formula is out of date and no longer relevant. Downer submits that the "general approach" in Roy Hill has been more recently recognised by DP Anderson in AMWU v Genesee and Wyoming Australia Pty Ltd[13] (AMWU v Genesee) and by (the then) Commissioner Hampton in Australia Rail, Tram and Bus Industry Union v One Rail Australia Pty Ltd[14] (One Rail). Downer submits these cases involved 12-hour shifts, which Downer submits operates very similarly to the one the relevant employees are engaged on. [15]

• [27] Downer further rejects AWU's 'adjusted formula'. The fact relevant employees work less Sundays' than required in the Roy Hill formula does not mean the formula should be adjusted. Rather it means the relevant employees have not been deprived of the rest and recreation benefits associated with Sundays and public holidays off work to the same extent as employees who regularly work Sundays and public holidays. As a result they are not entitled to the extra week's leave.

• [28] Finally, Downer rejects AWU's reliance on the Clubs Award Case on the following basis_:_

• The Clubs Award Case can be distinguished because it was dealing with an Award variation.
• Observations in Clubs Award Case did not overturn Roy Hill. This is confirmed by Hampton C, as he was then, in One Rail.
• The Full Bench in the Clubs Award Case contrasted the clubs industry (where rosters prioritise staffing at the end of the week or weekends to meet patronage) with 24/7 continuous shift work in manufacturing that assumes equal number of shifts over seven days a week. Downer submits the roster system applying to the relevant employees is far more analogous to that found in Roy Hill than in the hospitality or clubs industry.

• [29] As noted by Anderson DP in AMWU v Genesee "The phrase 'regularly works on Sunday and public holidays' is not unique to this agreement or unfamiliar to industrial regulation. The phrase has been the subject to past interpretation by the Commission and its predecessors..." The words have an industrial history - which includes analysis made in Roy Hill and the Clubs Award Decision - which must be considered when construing their meaning.

• [30] The Clubs Award Decision makes clear that a strict adoption of the formula laid out in Roy Hill, without reference to industrial context, will not always be appropriate. For example, in the Clubs Award Decision, the Full Bench found that that Roy Hill formula which derived from a continuous shift work system which rotated equally through each day, was not appropriate in the Clubs industry where rostering was likely to heavily focus on the end of the week and weekends. However, the Clubs Award Decision does not overturn the Roy Hill formula in its particular industrial context of 24/7 rotating shifts nor does it provide that the Roy Hill formula will not be correct in other industrial contexts[16]

• [31] In One Rail, Hampton C (as he was then), considered the impact of both Roy Hill and the Clubs Award Decision when construing the meaning of the phrase "regularly works Sundays and public holidays" in the context of workers engaged in a roster of 12 hours x 4 shifts per week, rotating through 7 days. Hampton C recognised that the Clubs Award Decision meant it was not appropriate to strictly apply the Roy Hill formula without reference to the industrial context of a particular instrument. However, in the particular matter he was considering, the Roy Hill formula remained relevant (although not determinative) because he was dealing with employees working a seven-day rotating shift roster. Taking this into account, Hampton C set out his "general approach" to construing the phrase in the particular industrial context, with reference to the following points:

• • Shift work in the order of 34 Sundays and 6 public holidays in a year may be required to constitute regularly working on Sundays and public holidays in the context of 7-day shift workers;[17]

• • Working approximately two-thirds of available Sundays and public holidays across the year is consistent with the notion of regularly working in the context of 7-day shift workers and a materially lesser amount would not meet that requirement; and[18]

• • Without a particular alternative context or contrary common intention, working only half of the available Sundays and public holidays as part of a 7-day shift operation would not represent working those days on a regular basis.[19]

• [32] In the matter before me the relevant employees are engaged on a seven-day rotating shift roster so Downer can provide 24/7 coverage for road maintenance and incident response. The Civil Maintenance Crew works a roster of 3 or 4 days on and between 2-5 days off. The Incident Response Crew works 3 days on, 4 days off, rotated three times over 12 weeks. While the actual days worked by each employee will vary because of the nature of the roster, it is not readily apparent that the relevant employees work anymore on Saturday, Sundays or public holidays than any other day of the week. This is consistent with uncontested evidence given by Downer.[20]

• [33] Despite Roy Hill being a manufacturing context, the shift roster worked by the relevant employees is more analogous to the roster in Roy Hill than the type of roster envisaged by the Full Bench in the Clubs Award Decision where employees were disproportionately rostered at the end of the week or the weekend.

• [34] Given the fact that the relevant employees are engaged on 24/7 shift roster, rotating through all seven days to ensure constant coverage, I find that a reasonable person would understand that the Roy Hill formula remains important (though not determinative) to construing the phrase 'regularly works Sundays and public holidays."

• [35] Having said that, and in line with the Clubs Award Decision, there may be other industrial factors that displace this assumption. I now turn to consider the other industrial factors raised by the AWU.

• [36] I was not persuaded by AWU arguments that the industrial context in this matter justified a substantial shift away from the Roy Hill formula and other cases that have considered the phrase in the context of seven day rotating shift workers. While I recognise the relevant employees are engaged in road construction and maintenance, not in the manufacturing industry, their rosters were comparable to that considered in AMWU v Genesee and One Rail. There was no compelling reason put to me why seven day rotating shift rosters in the road construction and maintenance industry should be distinguished from the manufacturing industry nor was it suggested that there were unique factors relating to the industry that would impact on the interpretation of the phrase 'regularly works Sundays and public holidays'.

• [37] I was not persuaded by the AWU's argument that - given employees work 12 hours by 3 or 4 shifts per week, rather than 8 hours by 5 days a week - the formula for regularly working Sundays should be adjusted. The additional week's leave is to compensate employees for working regularly on Sundays and public holidays. If rosters have been adopted to reduce the number of Sundays and public holidays worked by employees, then the relevant employees are not entitled to an extra week simply because they "sometimes" work Sundays or public holidays.

• [38] While I acknowledge the fact that there are now more public holidays than when the Steel Case initially proposed the 5/7th formula, I cannot see how this consideration would reduce the number of public holidays that were required to be worked.

• [39] Given I do not find any relevant industrial factors or contrary common intentions, which would displace the Roy Hill formula_,_ I find that regularly working Sundays and public holidays under 11(1)(g) is to be understood in the context of the Roy Hill formula_._ I do not think a strict adoption of the formula is appropriate, but rather I adopt the general approach of Hampton C in One Rail - and in terms of a general guide find that working approximately two-thirds of available Sundays and public holidays would be consistent with working regular Sundays and Public holidays. Workers may still meet the definition if they worked more Sundays and less public holidays or vice-a-versa.

Part 2 - Are the relevant workers continuous shift workers for purpose of 11(g)?

• [40] Having determined that for the purposes of 11.1(g) 'regularly works' requires approximately two-thirds of Sundays and public holidays to be worked, I now turn to the question of whether the relevant employees work the required number of Sundays and public holidays to meet this definition.

• [41] Employees engaged in the Incident Response Crew work 12 ordinary hours per shift in accordance with clause 11.4 of the Agreement, rotating through day and night shift. Start times vary, but relevant to this current dispute, night shifts commencing on a Saturday or Sunday start at 6pm and finish at 6am.

• [42] Employees engaged in the Civil Maintenance Crew work 12 hours a day (8 hours at ordinary time and 4 hours at overtime in accordance the Agreement and Individual Flexibility Arrangements). Dayshift commences at 7am and finished at 7pm. Night shift commences at 7pm and finishes at 7am. On the roster provided[21], a night shift commencing on a Saturday is followed by a night shift commencing on a Sunday.

• [43] The parties provided joint submissions relating to work performed by the relevant employees on Sundays. The following charts provide details derived from the joint submissions regarding how many shifts which include Sunday work were rostered for relevant employees in 2024. These figures do not include overtime shifts. This is because while some of the relevant employees work a significant amount of overtime on Sundays and public holidays, the parties agreed that overtime shifts did not count towards Sundays worked for the purpose of this dispute.[22]

Incident Response Crew - Work on Sundays 2024 (not including overtime)

Civil Maintenance Crew - Work on Sundays 2024 (not including overtime)

• [44] Downer also provided undisputed evidence relating to the number of public holidays worked.

• [45] In the Incident response team, the highest number of public holidays worked in 2024 was 5.

• [46] In the Civil maintenance team, the average number of public holidays worked was 7, and the highest number public holidays worked by an individual was 10.

• [47] The parties are in dispute regarding which shifts that include work on a Sunday should be counted towards the number of Sundays worked under 11.1(g). A similar argument applies to public holidays.

• [48] Consistent with its current practice, Downer argues only day shifts worked on Sunday, and night shifts commencing on Sunday should be counted as Sunday shifts and therefore count towards the number of Sundays worked. If Downer's interpretation is accepted, the maximum number of Sundays worked by an employee in the Incident Response crew is 23 and the maximum number of Sundays worked by an employee on the Civil Maintenance Crew in 2024 is 18. Accordingly, no employee is close to working the approximately two thirds of Sundays required to meet the definition of continuous shift worker.

• [49] The AWU argues all shifts that include some work on Sunday - including Sunday day shifts, night shifts that commence on Saturday and cross over to Sunday, and night shifts that commence on Sunday - should be counted towards Sundays worked. Furthermore, AWU argues that if you work two shifts that include work on a Sunday - ie a night shift that starts on Saturday and crosses overs to Sunday and a night shift that starts on Sunday - this should be included as two Sundays worked.

• [50] Accordingly, in determining the overarching question of whether any of the relevant employees are continuous shift workers as defined in 11.1(g) the parties have sought, I answer the two following questions:

Do the Saturday Night Shifts that are rostered from 6pm to 6am count towards the total number of Sundays required to be worked by an individual employee to be classified as a 'continuous shiftworker' under the 2024 EA?

If the answer to Question 2 is yes, where an individual employee ... is rostered consecutively on a Saturday Night Shift from 6pm Saturday to 6am Sunday and then a Sunday Night Shift from 6pm Sunday to 6am Monday, do both the Saturday Night Shift and Sunday Night Shift count separately towards the total number of Sundays required to be worked by an individual employee to be classified as a 'continuous shiftworker' under the 2024 EA?

• [51] I note from the outset that for any of the relevant employees to have worked anywhere near two thirds of Sundays, I would need to answer yes to both questions.

• [52] In support of the argument that night shifts commencing on a Saturday and crossing over to Sunday should be considered a Sunday shift, the AWU relies on the following two agreement clause:

• [53] Firstly, clause 11.1(e) which defines 'Nightshift' as "any shift starting at or after 8:00 p.m. and before 6.00 a.m."

• [54] Secondly, clause 11.13 which provides:

Subject to this clause the provisions of clause 14.5 or 14.4 shall apply to shift workers. Where shifts commence between 11.00 p.m. and midnight on a Sunday or holiday, the time so worked before midnight shall not entitle the employee to the Sunday or holiday rate; provided that the time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or holiday and extending into a Sunday or holiday shall be regarded as time worked on such Sunday or holiday. Where shifts fall partly on a Sunday or a holiday that shift the major portion of which falls on a Sunday or a holiday shall be regarded as the Sunday or holiday shift.

• [55] The AWU submits that 11.13 deals with a related issue regarding the appropriate rate of pay for a shift that crosses over into a Sunday and/or public holiday. The AWU submits that a shift starting on Saturday, with the majority of the shift falling on a Sunday, is a Sunday shift.

• [56] In relation to the Incident Response Crew shift that commences at 6pm on a Saturday and goes to 6am Sunday the AWU submits that the shift should be considered a Sunday shift because although a majority of the shift does not fall on either Saturday or Sunday, clause 11.1(e) that defines 'Nightshift' as any shift starting after 8pm - favours an interpretation that the majority of the shift falls on Sunday "pursuant to a precise interpretation of the EA" [23]

• [57] The AWU submits that clause 11.1(g) is ambiguous because it is not clear if shifts that commence on a Saturday should be considered for the purpose of calculating Sunday work. Therefore, the Commission may have regard to extrinsic material and in this regard should have reference to the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award) as this is the Award relevant to Roy Hill. [24] The AWU argues that in the manufacturing context, "carry over shifts" are "anticipated and specifically provided for, with priority given to account for time worked on the Sundays."[25]

• [58] In relation to question 3, the AWU was unable to provide any precedent for its position that two shifts worked on a Sunday should be counted as two Sundays. Ultimately, the AWU submitted it was a matter of fairness. The AWU submitted the Commission should also have regard to the fact some of the relevant employees were regarded as continuous shift workers by previous employers under previous agreements. [26]

• [59] Downer submits Saturday night shift should not be counted when assessing whether an employee regularly works on Sundays. Downer relies on Bundaberg Sugar Ltd v Australian Workers Union [2016] FWC 4524 at [67],[27] a case where the Commission rejected that 6-day shift workers who finished their roster at 8am on Sunday mornings should be entitled to the extra weeks leave.

• [60] Downer rejects AWU submissions in relation to clause 11.13. Downer argues 11.13 has a clear meaning and there is no basis to refer to extrinsic material. The first two sentences of 11.13 are referring only to shifts commencing between 11pm and midnight. The final sentence should be read separately and is clear - the trigger for night shift crossing Saturday midnight to Sunday to become a 'Sunday or holiday shift' is that the major portion must fall on the Sunday or holiday. There is no ambiguity. As a shift commencing 6pm Saturday and finishing 6 am Sunday does not have a majority of the shift on the Sunday, it therefore does not count as a Sunday shift.

• [61] Downer challenges AWU submissions in relation to 11.1(e). Downer argues the definition of night shift "simply provides a permissible window within which a night shift may be scheduled." [28]

• [62] Downer argues if shifts commencing on a Saturday are considered Sunday shifts, then Sunday night shift should not be considered a Sunday night shift because the majority is worked on the Monday.[29]

• [63] In the alternative Downer submits that even if Saturday night shift should be counted towards the calculation of Sundays for the purpose of 11.1(g), Saturday night shift and Sunday night shift across the same Sunday cannot both be counted towards two separate Sundays**.** Downer argues the case law clearly indicates Sunday is not a reference to shifts on a Sunday, but to the actual day. Downer argues where an employee works a Saturday Night Shift and Sunday Night Shift, they are only deprived the benefit of one Sunday, therefore only one Sunday can be counted towards the definition of 'continuous shiftworker' for the purposes of clause 11.1(g).

• [64] Question 2 - Do the Saturday Night Shifts that are rostered from 6pm to 6am count towards the total number of Sundays required to be worked by an individual employee to be classified as a 'continuous shiftworker' under the 2024 EA?

• [65] While question 2 refers to rosters from 6pm - 6am (roster arrangements that cover the Incident Response Crew), I have also taken into account the 7pm - 7am roster (roster arrangements relating to the Civil Maintenance Crew) as part of the question. This is because when the question was initially formulated the AWU had incorrectedly understood that all employees worked 6pm - 6am rosters.

• [66] In my view the Agreement clearly envisages some shifts that commence on a Saturday or the day before a public holiday are to be treated in their entirety as Sunday shifts or public holiday shifts, at least for the purpose of penalty rates.

• [67] Clause 11.13 provides for when Sunday/public holiday rates of pay are payable for time worked on a Sunday/public holiday, and when an entire shift is to be treated as a Sunday/public holiday shift, even when work crosses over to another day. In my view, when the clause is construed using "common sense" and in its industrial context it provides as follows:

• The first sentence provides that the Sunday/public holiday penalty rates (as per clause 14.4 and 14.5) apply to time worked by shift workers on Sunday/public holidays.

• The first part of the second sentence provides an exception to this rule - namely being when a shift commences between 11pm and midnight on Sunday or public holiday, the time worked on a Sunday or a public holiday between 11pm and midnight does not attract Sunday/public holiday rates.

• The second part of the second sentence confirms that otherwise an employee will be entitled to Sunday/public holiday rates for time worked on a Sunday or public holiday, even when the shift commences on a Saturday or day preceding a public holiday.

• The final sentence provides that when a shift includes time worked on a Sunday or public holiday and time worked on another day, the entire shift will be treated as a Sunday or public holiday if the majority of the shift is worked on the Sunday or public holiday.

• [68] Accordingly, a shift commencing at 7pm on a Saturday, and extending to 7am Sunday, should be considered a Sunday shift in accordance with 11.13. This finding may have implications for the parties outside this decision, as I understand (at least on the basis of submissions) the 7pm-7am shift is currently not recognised as a Sunday shift.[30]

• [69] However, in relation to a shift commencing at 6pm on Saturday and extending to 6am Sunday, the shift is evenly divided and does not attract the special treatment of the entire shift as outlined in the final sentence of 11.13(g). In this regard I agree with DP Gostenik's comments in AMWU v Regal Cream[31] where His Honour considered the application of a similar clause to 11.13 in relation to whether an evenly split night shift should be considered a public holiday shift. In obiter, His Honour made comment that the clause "had no work to do because the straddling shift arrangement with which this dispute is concerned has no major nor minor component of the shift capable of falling on a public holiday."[32]

• [70] The definition of night shift in 11.1(e), while being important for night shift penalty rates, does not, in my view, have any bearing on the construction of 11.13.

• [71] Accordingly, with regard to Question 2, I find:

• In relation to the Civil Maintenance Crew, the shift commencing at 7pm on Saturday night should be considered a Sunday shift in accordance with 11.13.
• In relation to the Incident Response Crew, the shift commencing at 6pm on Saturday is not a Sunday shift under 11.13.

• [72] Question 3 - If the answer to Question (2) is yes, where an individual employee ... is rostered consecutively on a Saturday Night Shift from 6pm Saturday to 6am Sunday and then a Sunday Night Shift from 6pm Sunday to 6am Monday, do both the Saturday Night Shift and Sunday Night Shift count separately towards the total number of Sundays required to be worked by an individual employee to be classified as a 'continuous shiftworker' under the 2024 EA? No

• [73] Even though I have found that the shift commencing on Saturday nights for the Civil Maintenance Crew is a 'Sunday shift', I do not find that two separate shifts worked on a Sunday can count separately towards the total number of Sundays for the purpose of 11.1 (g).

• [74] The AWU's proposed interpretation is at odds both with a common sense reading of 11.1(g) and also the historical and industrial context of the clause - which is to compensate continuous shift employees for regularly missing out on Sundays or public holidays with an additional week's leave. An employee is not recognised as a continuous shift worker for the number of hours, or number of shifts worked on a Sunday or public holiday. An employee is recognised as a continuous shift worker in relation to the number of Sundays and public holidays worked (regardless of the tally of hours or shifts). You cannot be deprived of enjoying the same Sunday or public holiday twice.

• [75] Accordingly, my answer to the third question is no.

• [76] Ultimately, given my above findings, none of the relevant employees work enough Sundays to be considered continuous shift workers.

• [77] I understand that the relevant employees, particularly those who received an extra week's annual leave with previous employers, may well feel it's unfair that they are not defined as continuous shift workers when they work Sundays and public holidays. However, the definition of continuous shift worker under 11.1(g) of the 2024 EA, and in particular the phrase 'regularly works Sundays and public holidays', has a particular meaning based on its industrial history and context.

• [78] I have found that the meaning of 'regularly works Sundays and public holidays' in 11.1(g) is that an employee must work approximately 2/3 of the available Sundays or public holidays. The majority of relevant employees work less than half the Sundays in a year (not including overtime) and no relevant employee comes close to working approximately 2/3 of available Sundays. Even when I consider the evidence regarding public holidays worked, none of the relevant employees currently meets the requirements to be a continuous shift worker.

• [79] For the above reasons, the answer to the questions for arbitration are as follows:

(a) are covered by the Downer EDI Works Pty Ltd Victorian Road Maintenance Enterprise Agreement 2024 (2024 EA); and

(b) perform work pursuant to the CityLink contract; and

(c) work on the Civil Maintenance Crew roster or the Incident Response Crew roster,

'continuous shiftworkers' as defined in clause 11.1(g) of the 2024 EA?

For reasons given above, No, not under the current roster.

Do the Saturday Night Shifts that are rostered from 6pm to 6am count towards the total number of Sundays required to be worked by an individual employee to be classified as a 'continuous shiftworker' under the 2024 EA?

• I have also considered the Civil Maintenance Crew Shift (see [65] above)
• In relation to the Civil Maintenance Crew, the shift commencing at 7pm on Saturday night should be considered a Sunday shift in accordance with 11.13. This may have implications for the parties as discussed at [68] above.
• In relation to the Incident Response Crew, the shift commencing at 6pm on Saturday is not a Sunday shift under 11.13.

If the answer to (2) is yes, where an individual employee in (1) is rostered consecutively on a Saturday Night Shift from 6pm Saturday to 6am Sunday and then a Sunday Night Shift from 6pm Sunday to 6am Monday, do both the Saturday Night Shift and Sunday Night Shift count separately towards the total number of Sundays required to be worked by an individual employee to be classified as a 'continuous shiftworker' under the 2024 EA?

• [80] Accordingly, under their current roster the relevant employees are not continuous shift workers and are not entitled to the extra week's annual leave.

• [81] I take the opportunity to record the Commission's appreciation for the preparation of this matter for hearing and the advocacy of Mr Marr of the AWU and Ms Smith for Downer.

• [82] The dispute as notified is resolved in accordance with this decision.

[1] Section 87(1)(b)(ii) of the Act provides that an employee is entitled to 5 weeks paid annual leave if an enterprise agreement applies to the employee and defines or describes the employee as a shift worker for the purposes of the National Employment Standards.

[2] [2017] FWCFB 3005.

[3] Workpac Pty Ltd v Skene [2018] FCAFC 131 at [197].

[4] Ibid and AMWU v Berri at [114], 1 (iii) and Geo A Bond & Co (In LIq) v McKenzie [1929] AR (NSW) 498 at 503-504.

[10] Re Aurora Energy Enterprise Partnership Agreement 2002 - 2005 [2008] AIRC 1074 at 17.

[11] [1965] IR 449 as cited in Roy Hill at [25].

[13] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Genesee & Wyoming Australia Pty Ltd [2019] FWC 2502 at 55.

[14] Australia Rail, Tram and Bus Industry Union v One Rail Australia Pty Ltd [2021] FWC 3097

[20] DHB 94 and 98, Witness Statement of Hugh Brown at [20] and [30].

[31] Automotive, food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v Regal Cream Products Pty Ltd [2022] FWC 2146.

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