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.