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[72]
[2026] FWC 1167
General information, not legal advice.
Fair Work Commission
2026-04-07
Original judgment source is linked above.
s.739 - Dispute resolution
Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia
Application to deal with a dispute - interpretation of enterprise agreement - interpretation of clause 35.5 - principles of interpretation - rostered overtime - how rostered overtime is to be applied - part-time employees
[1] The Transport Workers' Union of Australia (TWU) has referred a dispute to the Commission in accordance with clause 14 of the Certis Security Australia and Transport Workers' Union Adelaide Airport Enterprise Agreement 2023 (the Agreement).
[2] The Agreement replaced the SNP Aviation Security and Transport Workers' Union Adelaide Airport Enterprise Agreement 2019 (the 2019 Agreement).
[4] A further issue was raised about Certis' compliance with the requirement in clause 32.5 to display the roster cycle, in addition to the beginning and end of the respective roster cycle on the roster. This issue was resolved by an undertaking from Certis about the steps it will take to ensure this provision is complied with.
[5] Attempts to resolve the dispute by conciliation were unsuccessful and both the TWU and Certis sought for the Commission to resolve the dispute by arbitration in accordance with clause 14 of the Agreement.
[6] The dispute between the parties centres around clause 35.5 of the Agreement, which states:
Employees (other than casual Employees) who receive a regular Set Pattern Roster Cycle, will have ROT applied to a week within a fortnightly pay period commencing on a Sunday, then a Saturday and so.
[10] Having heard from the parties, I have identified that the question to be determined is 'Does clause 35.5 require any rostered overtime for part-time employees to be allocated to a single week within a single fortnight within a roster cycle? Or alternatively, does clause 35.5 require any rostered overtime to be allocated to a week within each fortnightly pay period of a roster cycle?'
[11] For the reasons set out below, I find that the correct interpretation of clause 35.5 is for any rostered overtime required by Certis to be allocated to a week within each fortnightly pay period of a roster cycle.
The approach to construing enterprise agreements
...The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include the provisions of the industrial instrument as a whole and the place and arrangement of disputed terms in the instrument. The underlying statutory framework may also provide relevant context, as might prior instrument(s) from which a particular term has been derived. Regard may also be had to relevant surrounding circumstances, for the purpose of determining whether there is any ambiguity in a provision of an industrial instrument.
Further, the language of an industrial instrument is to be understood in the light of its industrial context and purpose, and not in a vacuum or divorced from industrial realities. Context is not itself an end. While a purposive approach to interpretation, and not a narrow or pedantic approach, is appropriate, consideration of the language contained in the text of the instrument remains the starting point and the foundation of the task of construction.
[14] With these principles in mind, I now turn to the consider the interpretation of the relevant clause in dispute.
[15] To understand clause 35.5, it is necessary to read it in conjunction with numerous other clauses and to consider the Agreement as a whole.
[16] A part-time employee is defined in the Agreement at clause 16.5 as an employee engaged in any classification who is engaged to work at least 56 hours per fortnight but less than 38 ordinary hours per week. They are rostered in accordance with clause 32 and for a minimum of four hours per shift. Additionally, they receive, on a pro rata basis, equivalent pay and conditions to those full-time employees who do the same work.
[17] At clause 31.2, the Agreement details the ordinary hours for part-time employees as '28 hours per week and less than 38 hours per week or where the Employer chooses to operate a roster, an average of 28 hours per week over the roster cycle.'
[18] It goes on to say that the ordinary working hours for a part-time employee must be a minimum of four hours per day and a maximum of 12 hours per day.
[21] The term 'Roster Cycle' is not defined in the Agreement but can be understood from these definitions to be a roster cycle period of either 2, 3, 4, 6 or 8 weeks.
[24] Overtime is dealt with in clause 35 of the Agreement, which relevantly states the following:
35.3 Hours worked outside of the ordinary hours of work in clause 31, and in the case of part time employees above an average of 38 ordinary hours per week, will be overtime.
35.4 Part-time employee's allocated ROT hours above the minimum average hours and up to a maximum average hours for the roster cycle, will attract a 20% overtime payment. Any additional hours worked with greater than seven days' notice will attract a 20% overtime payment.
[25] Clause 35.4 was replaced by Undertaking 4 upon the approval of the Agreement, which states:
Other than Team Leaders and Supervisors, Part-time employee's allocated ROT hours above minimum average hours and up to the maximum average hours for the roster cycle, will attract a 31 % overtime payment. Any additional hours worked greater than seven (7) days' notice will attract a 31 % overtime payment.
[28] Clause 35.4, or Undertaking 4, read in that context can be understood to require a 31% loading to be paid on ROT for part-time employees working hours in excess of an average of 28 per week and below an average of 38 hours per week for the roster cycle.
[29] The definition of ROT at clause 3.18 combined with these clauses identifies that ROT for part-time employees are the hours they are rostered in excess of an average of 28 per week over their roster cycle.
[30] By way of example, a part-time employee on a 2-week roster cycle, may be rostered for 56 ordinary hours over the 2-week period, up to 20 hours of ROT paid with a 31% loading and then any hours beyond that must be paid at overtime rates.
[31] Whereas a part-time employee on an 8-week roster cycle can be rostered to work 224 hours ordinary hours and up to 80 hours of ROT to be paid with a 31% loading for the roster period. Any additional hours beyond that must be paid at overtime rates.
[32] In determining the meaning and application of clause 35.5, it is necessary to consider overtime within its industrial context. Overtime is offered by an employer if and when it is needed. An employer may choose how the business will meet the operational needs, whether that is by hiring additional staff, altering rosters, or offering existing employees overtime.
[33] This is made clear in the Agreement at clause 35.1 which says 'The Employer may require an Employee to work reasonable overtime at overtime rates' (emphasis added).
[34] Clause 35.5 of the Agreement concerns overtime and restricts when and how it is to be applied.
[35] In the absence of clause 35.5, Certis would be able to request employees to work reasonable overtime in a manner it sees fit, provided that it complied with any other limitations in the Act and the Agreement (such as those set out in clauses 35.1 and 35.2).
[36] The existence and purpose of clause 35.5 and 35.6 in this context can be understood to be to restrict or limit the manner in which ROT is applied by Certis.
[38] The term 'applied' is not used in any other clauses within the Agreement. In considering other possible interpretations of the term 'applied', I observe that clause 35.5 does not appear in a clause dealing with the payment of wages but rather in a clause providing restrictions of when overtime can be rostered.
[39] I find that it should be interpreted as being a reference to 'allocating' rostered overtime.
[40] The construction proposed by the TWU means that an employee who is on an 8-week Set Pattern Roster has a possible 80 or more ROT hours that could be allocated, or applied, being the hours in excess of 28 hours per week averaged over the roster cycle, to one single week within the roster cycle.
[41] Applying just 80 hours of ROT to one single week within one single fortnight of that 8-week roster cycle is impractical and inconsistent with other restrictions in the Agreement.
[42] Certis are required by clause 32.3 of the Agreement to include a minimum of two rostered days off per week in the roster pattern.
[43] This would restrict Certis to allocating a part-time employee up to 80 hours of ROT across 5 days, or in other words, 16 hours of ROT per day for a 5-day period.
[44] Clause 35.2 of the Agreement provides further restrictions relating to overtime, stating, 'An employee must not be requested to work more than 14 hours per day or 122 hours per fortnight.'
[45] Accordingly, part-time employees working an 8-week roster would be limited to a maximum of 61 hours of ROT for every roster cycle (being half of 122 hours per fortnight), which is an average of 7.6 hours per week above the ordinary hours of 28 per week.
[46] This would create a significant disparity over time between the amount of overtime capable of being worked by an employee on a 2-week roster cycle and an employee on an 8-week roster cycle.
[48] I do not accept this submission, as clause 35.5 deals with how ROT is to be applied, not how it is to be remunerated.
[49] If the ROT is only able to be allocated to a single week within a single pay period in a roster cycle, the impact would be that Certis are not allowed to allocate any ROT beyond what is capable of being applied to that week taking into consideration all of the rostering restrictions in the Agreement.
[50] The practical effect of the clause would then be limiting the overtime that Certis can allocate to a part-time employee as being the amount that can fit in one week, taking into consideration all of the other restrictions in the Agreement.
[51] A further difficulty posed by the interpretation put by the TWU arises when considering the principles of interpretation because it would leave the words 'within a fortnightly pay period' with no work to do.
[53] If the ROT was to be allocated to a single week within one fortnightly pay period of the roster cycle, the words 'within a fortnightly pay period' have no effect and the clause could be read as 'a, or one, week within the roster cycle period.'
[54] The words 'within a fortnightly pay period' must have some work to do.
[55] For these reasons, I do not consider the TWU's interpretation of clause 35.5 to be correct.
[56] Rather, I find that the correct interpretation of clause 35.5, applying the principles of interpretation, is that when Certis require overtime to be performed, they are limited to allocating that ROT to one week within that fortnightly pay period commencing on a Sunday, then a Saturday and so on, taking into consideration all of the other relevant restrictions in the Agreement.
[57] This interpretation does not result in superfluous words, it is able to be read cohesively with the other clauses that provide further restrictions on rostering and overtime hours while accommodating the necessary relevant industrial context with respect to overtime.
[58] Having considered the context of the clause, the plain reading of the words and the industrial context and purpose, I find that there is no ambiguity as to the meaning of clause 35.5.
W. Cheffirs on behalf of the Applicant, Transport Workers' Union of Australia.
J. Reid and M. Novak on behalf of the Respondent, Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia
[1] Defined in clause 3.18 of the Agreement.
[2] Digital Hearing Book (DHB) at p.108, paragraph [29].
[6] [2024] FWCFB 366 at [42]- [43].
[7] [2017] FWCFB 3005 ('AMWU v Berri').
[19] Audio Recording of Hearing at 59:51-1:04:04.
Printed by authority of the Commonwealth Government Printer
Transport Workers' Union of Australia
Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia [2026] FWC 1167