United Voice v Wilson Security Pty Ltd

Background 3 The Award provides for flexible rostering, with provision for the payment of penalty rates and overtime. Under the Award, penalty rates are only payable on ordinary hours, not on overtime. How ordinary hours and overtime hours within a roster are lawfully able to be allocated may therefore affect an employee's entitlement to penalty rates. 4 Wilson Security employed guards on a four week roster. Ordinary hours were 38 hours per week, and thus 152 hours over four weeks. Mr Davis was allocated 14 shifts of 12 hours duration over four weeks, a total of 168 hours. The 16 hours in excess of 152 hours were overtime. Overtime was payable as a loading on top of ordinary rates of between 50% and 150%, depending on when it was worked and how many overtime hours were worked, and any agreement extending ordinary hours for a given rostered shift. 5 Until 31 October 2016, Wilson Security had rostered the 16 hours of overtime so that they took place only after the 152 ordinary hours would have been worked. It was then a matter of chance whether those 16 hours took place at a time when no other penalty would have been payable or not, with penalty rates not being payable when overtime applied. 6 From 31 October 2016, Wilson Security allocated overtime to Sundays, incurring a 100% loading. This eliminated payment of 100% Sunday penalty rates. It was not in doubt that this change was implemented to save Wilson Security the cost of paying Sunday penalty rates and also reduce superannuation costs. 7 The following table was included in the primary judge's reasons to depict the effect of the change in rostering for a given period after 31 October 2016: Shift Day Start time Finish time Hours Total 1 Monday 600 1800 12 12 2 Tuesday 600 1800 12 24 Wednesday - - Thursday - - 3 Friday 1800 600 12 36 4 Saturday 1800 600 12 48 5 Sunday 1800 600 12 60 Monday - - Tuesday - - 6 Wednesday 600 1800 12 72 7 Thursday 600 1800 12 84 Friday - - Saturday - - Sunday - - 8 Monday 1800 600 12 96 9 Tuesday 1800 600 12 108 Wednesday Thursday 10 Friday 1800 600 12 120 11 Saturday 1800 600 12 132 12 Sunday 1800 600 12 144 Monday Tuesday 13 Wednesday 1800 600 12 156 14 Thursday 1800 600 12 168 Friday Saturday Sunday

8 Up to 31 October 2016, overtime was rostered for shifts 13 and 14, after 152 rostered ordinary hours. As those shifts were during the week, overtime rates were payable. From 31 October 2016 onwards, overtime was rostered by being "allocated" to Sunday shifts 5 and 12, before 152 ordinary hours would be performed. Because there was already a Sunday penalty rate of 100%, and only one loading had to be paid at any one time, no overtime was payable under the Award. The result was that Mr Davis' pay, leave accruals, and superannuation contributions were reduced, while the number of hours he worked did not change. 9 In oral argument during the hearing before the primary judge, both parties contended that Mr Davis was not entitled to both the penalty rate and the overtime loading, because penalty rates are framed as applying only to "ordinary hours worked" at cl 22.3. It was therefore common ground that if Wilson Security was entitled to allocate overtime to Sundays before ordinary hours had been worked, then Mr Davis would be entitled to the 100% loading for overtime, but not the 100% Sunday penalty rate as well. 10 The primary judge found that there was nothing in the Award to prevent Wilson Security from allocating overtime in this way in the absence of any express restriction to that effect. The appellants contend that his Honour erred in reaching that conclusion.

Relevant clauses of the Award 11 Part 5 of the Award is titled "Hours of Work and Related Matters": (1) Clause 21 relevantly provides as to ordinary hours, rosters, shifts and breaks: 21. Ordinary hours of work and rostering 21.1 Ordinary hours and roster cycles (a) The ordinary hours of work are 38 hours per week, or where the employer choses to operate a roster, an average of 38 hours per week to be worked on one or more of the following bases at the discretion of the employer: (i) 76 hours within a roster cycle not exceeding two weeks; (ii) 114 hours within a roster cycle not exceeding three weeks; (iii) 152 hours within a roster cycle not exceeding four weeks; or (iv) 304 hours within a roster cycle not exceeding eight weeks. (b) … 21.2 Shift duration (a) Ordinary time shifts must be limited in duration to: (i) for casual employees - a minimum of four and a maximum of 10 ordinary hours; (ii) for full-time employees - a minimum of 7.6 and a maximum of 10 ordinary hours; and (iii) for part-time employees - a minimum of one fifth of the employee's agreed weekly hours or four hours (whichever is the greater) and a maximum of 10 ordinary hours. (b) Notwithstanding clause 21.2(a), by agreement between the employer and the majority of employees concerned in a particular establishment, ordinary working hours exceeding 10 but not exceeding 12 hours per shift may be introduced subject to: (i) proper health monitoring procedures being introduced; (ii) suitable roster arrangements being made; (iii) proper supervision being provided; (iv) adequate breaks being provided; and (v) an adequate trial or review process being implemented where 12 hour shifts are being introduced for the first time. (c) … (d) Clause 21.2(b) is not intended to prevent an employer implementing 12 hour rosters through the use of regular rostered overtime (subject to the requirements in s.62 of the Act in relation to the right of an employee to require reasonable overtime) or individual flexibility arrangements made pursuant to clause 7 - Award flexibility. 21.3 Break between successive shifts Each ordinary time shift must be separated from any subsequent ordinary time shift by a minimum break of not less than eight hours. 21.4 Long breaks (a) An employee must be given separate long breaks of continuous time off work in each roster cycle as follows: Length of roster cycle Minimum number of breaks 3 weeks 3 breaks of 2 days (48 continuous hours) 4 weeks 3 breaks of 3 days (72 continuous hours); or 4 breaks of 2 days (48 continuous hours) 8 weeks 6 breaks of 3 days (72 continuous hours); or 9 breaks of 2 days (48 continuous hours)

… 21.11 Notice of rosters Employees (other than relieving officers and casual employees) must work their ordinary hours of work in accordance with a roster for which advance notice has been given. A relieving officer or casual employee may also, at the employer's discretion, work their ordinary hours of work in accordance with a roster for which advance notice has been given. 21.12 Display of roster and notice of change of roster The employer must notify employees who work their ordinary hours in accordance with a roster of the commencing and ceasing times of their rostered hours of work either by posting the roster on a noticeboard which is conveniently located at or near the workplace or through electronic means. Such times, once notified, may not be changed without the payment of overtime, or by seven days' notice given in accordance with this clause. However, by agreement between the employer and the employee less than seven days' notice may be substituted. (2) Clause 22 relevantly provides as to penalty rates: 22. Penalty rates 22.1 In this clause a span refers to a period or periods as follows: Span Period Day span 0600 hrs to 1800 hrs Monday to Friday (excluding hours on a day that is a public holiday) Night span 0000 hrs to 0600 hrs and 1800 hrs to 2400 hrs throughout the period from 0000 hours Monday to 2400 hours Friday (excluding hours on a day that is a public holiday) Saturday span 0000 hrs to 2400 hrs on a Saturday Sunday span 0000 hrs to 2400 hrs on a Sunday Public holiday span 0000 hrs to 2400 hrs on a public holiday

22.2 Permanent night work means work performed during a night span over the whole period of a roster cycle in which more than two thirds of the employee's ordinary shifts include ordinary hours between 0000 hrs and 0600 hrs. 22.3 Penalty rates Penalty rates apply to ordinary hours worked as follows: Hours worked during Penalty rate in addition to ordinary time rate % Night span 21.7 Night span (Permanent night work) 30 Saturday span 50 Sunday span 100 Public holiday span 150

(3) Clause 23 relevantly provides as to overtime: 23. Overtime 23.1 Reasonable overtime is provided for in the NES. 23.2 An employee must not be required to work more than 14 hours (including breaks to which the employee is entitled under this award). 23.3 Overtime rates Where an employee works overtime the employer must pay the employee the ordinary time rate for the period of overtime together with a loading as follows: For overtime worked on Loading payable in addition to ordinary time rate % Monday to Friday - first 2 hours 50 Monday to Friday - thereafter 100 Saturday - first 2 hours 50 Saturday - thereafter 100 Sunday 100 Public Holiday 150

23.4 Where a period of overtime commences on one day and continues into the following day, the portion of the period worked on each day attracts the loading applicable to that day.

Relevant provisions of the Fair Work Act 12 Sections 62 and 63 of the Fair Work Act provide: 62 Maximum weekly hours Maximum weekly hours of work (1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable: (a) for a full‑time employee - 38 hours; or (b) for an employee who is not a full‑time employee - the lesser of: (i) 38 hours; and (ii) the employee's ordinary hours of work in a week. Employee may refuse to work unreasonable additional hours (2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable. Determining whether additional hours are reasonable (3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account: (a) any risk to employee health and safety from working the additional hours; (b) the employee's personal circumstances, including family responsibilities; (c) the needs of the workplace or enterprise in which the employee is employed; (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; (e) any notice given by the employer of any request or requirement to work the additional hours; (f) any notice given by the employee of his or her intention to refuse to work the additional hours; (g) the usual patterns of work in the industry, or the part of an industry, in which the employee works; (h) the nature of the employee's role, and the employee's level of responsibility; (i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64; (j) any other relevant matter. Authorised leave or absence treated as hours worked (4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised: (a) by the employee's employer; or (b) by or under a term or condition of the employee's employment; or (c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law. 63 Modern awards and enterprise agreements may provide for averaging of hours of work (1) A modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed: (a) for a full-time employee - 38 hours; or (b) for an employee who is not a full-time employee - the lesser of: (i) 38 hours; and (ii) the employee's ordinary hours of work in a week. (2) The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1). Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).

Before the primary judge 13 The central issue before the primary judge was whether: (1) as the appellants contended, an employee who is rostered to work for more than the maximum number of ordinary hours in a given period only starts to work overtime after he or she has worked for that number of ordinary hours - that is, "overtime" refers to the hours in a given period that are not just in excess of ordinary hours, but also worked chronologically after the maximum ordinary hours have been worked, leaving no room for overtime to be allocated to periods prior to the maximum number of ordinary hours being worked; or (2) as Wilson Security contended, it is free, as part of the flexibility provided for in the Award, to nominate and thereby allocate particular shifts and hours within a roster as "overtime" in the sense of being hours rostered in excess of the number of ordinary hours for the period, without any chronological order required as between rostered overtime hours and the balance of the hours rostered to be worked, which are necessarily ordinary hours. 14 The meaning of "overtime" is not provided by any definition in the Award, nor in the Fair Work Act. It was common ground that this term was to have its ordinary and well-understood industrial meaning in the context of the Award; but there was not common ground as to what that meaning was. The primary judge held that it means hours that are worked in addition to ordinary hours, citing (at [23]): (1) Re Steel Works Employees (Australian Iron and Steel Limited) Conciliation Committee [1941] AR (NSW) 445 per Cantor J at 460: … Of course, time worked in excess of the number of ordinary working hours and time worked before the commencing or after the ceasing times regularly observed by an employee must be and is, paid for at overtime rates. (2) Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55; 77 ALJR 1806 per Kirby J at [82] (to which may be added [83]): The concept of "overtime" in cl 4.2 of the Award coincides with the concept of "overtime" in common parlance. There it constitutes a reference to work performed beyond ordinary hours that, incidentally, attracts a special (greater) rate of pay, typically time and a half or double time. However, the whole point of casual employment is to distinguish it from this normal aspect of weekly employment (whether full-time or part-time). Except to the extent that the Award makes special and particular provisions for overtime for casual employees, they would usually fall outside the normal provision for overtime hours at overtime rates. With respect, the reasoning of the Full Court failed to give effect to the distinction earlier drawn in rejecting the appellant's primary argument, that is, the distinction between working overtime hours and working ordinary hours of work. Under the Award, overtime hours and ordinary hours of work are discrete in point of time. Overtime payments for employees paid by reference to set hours of work are made by reference to the working of hours that are truly characterised as overtime hours. Casual employees, by way of contrast, are paid for working ordinary hours of work. Casual employees receive an hourly rate, loaded for the incidents of casual employment. The only overtime rates that casual employees receive are those specifically provided in cl 4.7 of the Award. Such rates are paid for time worked outside the spread of ordinary working hours in excess of eight in any one day or 38 in any one week. No part of the other times that a casual employee works can properly be characterised as overtime. 15 The primary judge concluded as follows (at [50]-[54]): Rostering arrangements are within the discretion of the employer. Consistently with the existence of this discretion the Award does not contain any express restrictions on the exercise of that power. In particular it is open to an employer: • to choose the day on which a roster is to begin; • to decide whether overtime hours can be included in the roster at a point before which all ordinary hours have been worked; • to decide on the number of days on which ordinary hours can be worked; and • to fix the number of days of the week on which ordinary hours are to be worked (subject to the limitations prescribed by cls 21.3 and 21.4). Absent such express restrictions, the ordinary and natural language of the Award, in my view, permits an employer to act in the manner in which the respondent has done in the present case. The language employed by the draftsman of the Award does not compel the reading in of the kind of restrictions contended for by United Voice. Nor is this rendered necessary in order to ensure the effective operation of the Award provisions. Decisions of industrial tribunals of long standing have favoured contrary constructions. The catalyst for the present application would appear to have been the more recent decision in MSS Security [Harland v MSS Security Pty Ltd [2013] FWC 8064]. For the reasons explained above at [48] I do not consider that that decision assists United Voice's construction arguments in the present proceeding. What these conflicting decisions highlight is the absence of any clearly understood and mutually accepted understanding of the operation of the rostering provisions and the allocation of overtime to Sundays. Given these circumstances it is all the harder to support the implication of terms in the Award which do not appear.

The competing arguments 16 The appeal is in substance a re-run of the case before the primary judge. The parties presented competing arguments as to how well-established principles of interpretation of industrial awards and agreements should be applied. There is no need to repeat the uncontested summary of those cases contained in the primary judge's reasons (at [31] to [32]). 17 Little assistance is to be gleaned from how industrial tribunals have approached this issue in the past, including in deciding whether or not to approve a proposed enterprise agreement, involving any implicit or even express view as to the meaning to be given to "overtime". While the primary judge quoted and considered such decisions, his Honour effectively found that they went both ways and ultimately did not assist. 18 It may be accepted that at least some tribunal decisions support the meaning of overtime relied upon by the appellants, which is also supported by the following dictionary definition to like effect: (1) "extra time, esp added to one's regular working day or to a set minimum number of hours": Shorter Oxford English Dictionary, Fifth Edition, Oxford University Press; (2) "time during which one works before or after regularly scheduled working hours": Macquarie Dictionary, Fifth Edition, Macquarie Dictionary Publishers (3) "work done outside, or in addition to, the standard hours fixed for an employee by an industrial award or agreement, or by legislation": Australian Legal Dictionary, 2nd Edition, LexisNexis. 19 As the primary judge correctly pointed out (at [26]), the Court's decision must depend on the text and context of the Award. That may or may not accord with the views of industrial tribunals, or dictionary definitions. The resolution of the appeal turns on the meaning to be given to the relevant terms of the Award, including as to overtime, and whether or not his Honour erred in the conclusion reached in favour of Wilson Security. 20 The appellants' case is that it is wrong to conceptualise their case as involving any question of the absence of a restriction in the Award, preventing Wilson Security from rostering overtime to take place before ordinary hours will have been performed. Rather, they contend that the ordinary meaning of "overtime" renders the language of "allocation" of overtime inapt and productive of misunderstanding. They submit that whether hours worked are ordinary hours, or overtime, is the product of the application of the Award, not employer preferences. Thus, on their argument, under the Award: (1) if an employee is directed to work on a public holiday, the corresponding penalty rate is payable; (2) if work is required to be performed at night, a night shift loading is payable; (3) if an employee works more than 152 hours in a four week period, overtime is payable for that excess period; (4) an employer no more "allocates" the hours to be paid at overtime rates than it "allocates" public holidays or shift loadings. 21 The appellants submit that the primary judge misconstrued the Award. The appellants submit that for the purposes of the Award, overtime hours were those worked after the completion of ordinary hours, referring to the passage from Re Steel Works Employees quoted at [14(1)] above and also Re Confectioners (State) Conciliation Committee [1930] AR (NSW) 184 (at 188-189): … I am of opinion that the definition of "overtime" in section 3 itself includes work outside the usual fixed times of night shift and work before the usual starting time and after the usual ceasing time. … The term "overtime," a word of extremely common use in Australia, undoubtedly does include overtime in the nature of extra numbers of hours and overtime in the nature of hours worked outside limits which are prescribed by industrial award, by industrial or other agreement, or by recognised usage in a given industry. This meaning of overtime corresponds with the definition in Webster's dictionary which is as follows:-- Overtime: Time beyond, or in excess of, a limit; especially extra working time. 22 The appellants also rely upon CP Mills, Industrial Laws, New South Wales: Fourth Edition of "Nolen and Cohen" (Butterworths, 1977) 312-315. In particular Re Steel Works Employees at 460 is cited at page 312 as being authority for the proposition that "[t]ime worked in excess of the number of ordinary working hours for employees under an award and time worked before the commencing or after the ceasing times regularly observed by employees under an award, must be regarded as, and paid for as, overtime". 23 The appellants therefore submit that for the purposes of the Award, overtime in its ordinary meaning meant that overtime was those hours worked in excess of the ordinary hours for the roster period and that where, as here, the employer has adopted a four week roster cycle, overtime penalties were payable in respect of hours above, or in excess of 152 hours in the four week cycle. It was an essential part of the appellant's case that the overtime was worked only in those hours after the first 152 hours in the roster cycle, that is, in shifts 13 and 14. 24 As well as relying on industrial tribunal cases which have supported the view the appellants urge as to the meaning of overtime, the appellants rely upon the following contextual arguments: (1) it was objectively unlikely that it was intended that carefully worked out penalty provisions for long-standing employee entitlements would be effectively optional, permitting payment of overtime penalties to be avoided by the simple expedient of declaring all weekend hours as overtime; (2) the dual purpose of overtime penalties is to compensate employees for working long hours and to create a disincentive for employers to require particular employees to work long hours, citing 4 Yearly Review of Modern Awards - Casual Employment and Part-Time Employment [2017] FWCFB 3541; 269 IR 125 at [549]; (3) impractical and arbitrary results would flow from Wilson Security's approach, creating asserted practical difficulties for both employers and employees - for example, if this was permitted, an employer could designate the very first hour of a roster as overtime, to be paid at overtime rates if that was during the week, irrespective of whether the full complement of 152 ordinary hours was ever worked, with it being objectively unlikely that it was intended that an employee who worked less than a full complement of ordinary hours should be paid an overtime penalty intended to compensate for working long hours; (4) this approach would negate the right of an employee under s 62(2) of the Fair Work Act, to refuse to work "unreasonable additional hours" on the grounds of fatigue caused by long working hours, with the capacity to refuse being effectively predicated on the assumption that the additional overtime hours do not come before ordinary hours.

Consideration 25 It is not in doubt that "overtime" comprises hours beyond those provided as ordinary working hours in the Award - in this case 152 hours over four weeks. Of the 168 hours that Mr Davis is rostered to work in each four-week period, 16 hours are additional to, more than, or in excess of, 152 hours in that period of time (extra hours). However, what the appellants contend for requires the incorporation of an additional and indispensable element to the definition of overtime, namely that those extra 16 hours must also be worked after the 152 ordinary working hours in a roster cycle have been performed. 26 Wilson Security is unable to provide the Court much in the way of assistance as to the meaning of overtime, beyond an assertion that it was not limited in the way contended for by the appellants and a warning not to pay too much heed to the treatment of the concept in a context other than the Award. The question of whether the additional chronological element the appellant relies upon must be present therefore falls to be considered by reference to the appellants' submissions summarised above, the reasoning of the primary judge, the authority cited, the terms of the Award, and the terms of the relevant overtime provisions in the Fair Work Act. 27 It may be observed that the passages from Re Steel Works Employees reproduced at [14(1)] above, from Re Confectioners reproduced at [21] above and from the Mills textbook reproduced at [22] above all expressly contemplate overtime occurring not just after ordinary working hours, but also before ordinary working hours. The passage from Australian Communication Exchange reproduced at [14(2)] above, goes no further than referring to overtime being hours in excess of the number of ordinary working hours, without any chronological aspect being mentioned. As already noted, the decision of industrial tribunals provide little assistance, not least because those cases cut both ways, but also because they seem to be dependent on usage and application, rather than meaning. 28 The substance of the appellants' case depends on conflating the meaning for overtime with the way in which it has often, but not necessarily invariably, been organised and paid. That overtime might, when in relation to a single working day, be more likely to be performed after that working day is a function of when extra hours are more likely to be needed, not a function of when they can be required to be performed. 29 The appellants' argument may be tested in this way. Suppose an employer bound by the Award employed certain staff on a weekly roster of 38 ordinary hours per week, over five 7.6-hour weekdays. And suppose there was a need for some staff to work a 10.6 hour day on a Wednesday. On the conclusion reached by the primary judge, it would be open to roster the additional three hours added to a Wednesday as overtime, making the incidence accord with the longer day. On the appellants' argument, that overtime could only be the last three hours of the week, on a Friday, bearing no correlation to when the additional hours were to be worked. 30 Properly considered, "overtime" means no more than it states and has been long understood on the authorities referred to above - over, or more, than ordinary hours, in relation to the period of time for which ordinary hours apply. The chronological limitation Mr Davis seeks to impose is the product of historic usage and application, rather than inherent meaning. Even that usage and application does not necessarily support the appellants' argument. It is an amount of time that is over the ordinary hours, not necessarily after the ordinary hours, even if it more commonly, or even invariably, takes place after those ordinary hours will be, or have been, worked. 31 If the ordinary hours under consideration are those of a single day, then overtime may be such extra hours to be worked before those ordinary hours, or after those ordinary hours, being the number of hours that will be in excess of ordinary hours. The same approach may be taken on a weekly basis, or, as in this case, a four-weekly basis, but with the additional element that the overtime hours may take place not just before or after the ordinary hours for the week or four weeks have been, or will be, worked, but also during a period in which ordinary hours are worked, or will be worked. 32 Once the broader meaning of overtime is appreciated, which is consistent with the prior curial understanding in Re Steel Works Employees, Re Confectioners and Mills, and not inconsistent with Australian Communication Exchange, all of which focus on the notion of overtime being additional working hours, that meaning does not influence the operation of the Award in the manner contended by the appellants. Nor do the findings of industrial tribunals or dictionary definitions assist, reflecting as they do common historic applications of the concept of overtime in one particular way, rather than reflecting any limitation to be given to its true meaning. Just because the extra or additional hours might often take place after ordinary hours have been, or will be, worked, that does not preclude them taking place before they have been, or will be, worked, or in between the time in which ordinary hours will be worked. In any of these scenarios, they are additional hours, and therefore constitute overtime for which a loading is payable, depending on when the additional hours are required to be performed. 33 The primary judge was therefore correct to consider that the real question was whether the Award imposed any restriction upon Wilson Security rostering overtime to be worked prior to the point in time at which the monthly ordinary hours would be performed, such that overtime could only be rostered to take place after ordinary hours have been, or will be, worked. The contextual arguments relied upon by the appellants, summarised at [24] above, are to be taken into account, but cannot operate to change the meaning of overtime, nor the words in the Award which do not, expressly or by any necessary implication, effect such a change. 34 If words in the Award permit Wilson Security to roster overtime prior to the point in time at which ordinary hours will have been worked, and the ordinary meaning of overtime is not confined to the period after ordinary hours have been worked, it is not to the point that this might otherwise be seen as unlikely, out of step with how overtime might have been historically and conveniently organised, or, if done without due care, produce impracticalities and even involve a measure of arbitrariness from Mr Davis' perspective. 35 The Award does not provide any express or clearly implied power to order an employee to work overtime, as opposed to performing ordinary hours of work for which direct provision is made. Instead, the Award has effect in conjunction with the National Employment Standards (NES), which are contained in the provisions of Part 2-2 of the Fair Work Act. In relation to overtime, cl 23.1 of the Award provides that reasonable overtime is provided for in the NES. This directs attention to s 62 and s 63 of the Fair Work Act, reproduced at [12] above. Those provisions may be summarised as follows: (1) Section 62 provides that an employer must not request or require a full-time employee to work more than 38 hours per week unless the additional hours are reasonable, and provides, correspondingly, that an employee may refuse to work additional hours if they are unreasonable. There is nothing in s 62 that imposes any temporal or chronological limitation of the kind that the appellants contend must apply. (2) Section 63 provides that a modern award may include terms providing for the averaging of hours over a specified period, but that the average weekly hours must not exceed 38 hours for a full-time employee. This means that the traditional concept of a working week, with hours allocated only to that week, with overtime for any hours in excess in that period, does not have to apply. 36 Clause 21.1 of the Award provides that the employer could choose to operate a roster whereby the ordinary hours of work were an average of 38 hours per week to be worked on one of four bases at the discretion of the employer. No roster was in evidence, but the hearing below and this appeal proceeded on the basis of admitted facts, as reflected in the table in the primary judge's reasons, reproduced at [7] above. Clause 21.1 had the effect that, because the respondent chose to operate a four week roster, the ordinary hours of work were 38 hours per week averaged over four weeks, being a total of 152 ordinary hours over a four week roster. 37 Wilson Security elected to roster 152 ordinary hours within a roster cycle involving 12 hour shifts over a 4 week period. Clause 21.2(a)(ii) required ordinary time shifts for full-time employees to be limited to a maximum of 10 ordinary hours. Clause 21.2(b) permitted each such shift to be up to 12 ordinary hours, by agreement between an employer and the majority of employees concerned. By reason of the shift duration of 12 hours without overtime for the last two hours, included in the admitted facts before the primary judge, there must have been the necessary agreement in this case. Ordinary hours were therefore able to be longer than the otherwise maximum of 10 hours per shift, precluding the eleventh and twelve hours necessarily being considered as overtime. Clause 21.2(d) expressly provided that an agreement to have 12 hour shifts of ordinary hours was "not intended to prevent an employer implementing 12 hour rosters through the use of regular rostered overtime", subject to s 62 of the Fair Work Act. 38 Clause 21.11 provided that employees must work ordinary hours of work in accordance with a roster. Clause 21.12 provided that the employer must notify employees who work their ordinary hours in accordance with a roster which identified the commencing and ceasing times of the rostered hours of work. Clause 21.12 also provides that additional hours that are required of any employee once a roster has issued, and for which less than seven days' notice has been given, results in overtime being payable for that time, which could conceivably occur before a four-week roster period has even commenced. 39 As noted above, the key feature of overtime is that it involves extra hours to ordinary working hours, whether that be hours for which insufficient notice is given to be ordinary hours, hours that occur before ordinary working hours, or simply hours that are more than ordinary working hours in the four week period. Once that characteristic of an excess over ordinary hours is present, the obligation on an employee to perform those extras hours, whenever they are rostered to take place, is qualified, rather than absolute: the requirement to work the extra hours, whenever they might be required, must be reasonable in the circumstances dictated by s 62 of the Fair Work Act. Reasonableness is to be ascertained in context, including the total number of hours to be worked. Viewed in this way, while the protection in s 62 may be somewhat diminished by Wilson Security's approach to rostering overtime, its protective function is not rendered otiose. 40 Because Wilson Security had an obligation under cl 21.12 to roster ordinary hours, it follows that it could choose what hours would be worked as ordinary hours. By notifying Mr Davis that his overtime hours would be allocated to Sundays, Wilson Security necessarily notified him that the other rostered hours, which did not exceed 152 hours in number, were to be worked as ordinary hours. From 31 October 2016, Mr Davis' ordinary hours included shifts 13 and 14 on a Wednesday and Thursday, and consequently no overtime was payable in respect of those shifts. 41 It follows that the primary judge was correct and the appeal must be dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Collier, Bromwich and Wheelahan.