[2024] FWC 1706 [Note: An appeal pursuant to s.604 (C2024/5260) was lodged against this decision.]

Fair Work Commission|2024-07-12

United Workers' Union v Metcash Trading Limited T/A Metcash [2024] FWC 1706 (12 July 2024)

[2024] FWC 1706 [Note: An appeal pursuant to s.604 (C2024/5260) was lodged against this decision.]

s.739 - Dispute resolution

Application to deal with a dispute about any matters arising out of the enterprise agreement - dispute arbitrated

[1] This decision involves an application brought by the United Workers' Union (Applicant) under section 739 of the Fair Work Act 2009 (Cth) (FW Act). The Respondent is Metcash Trading Limited T/A Metcash (Respondent).

[2] The parties are covered by the Metcash Trading Limited Victoria Perishable Warehouse Operations Enterprise Agreement 2022 (Agreement). The Agreement was approved by the Fair Work Commission (Commission) on 11 July 2022 and has a nominal expiry date of 10 July 2025.[1] The Agreement applies to the Respondent, the Applicant, and "all employees employed by the company under the classifications of this agreement who perform work within the Company's cold storage logistics operations within the state of Victoria".[2] The only worksite where employees covered by the Agreement currently perform work is located in Laverton, Victoria.[3]

[3] The parties jointly submitted that the question for arbitration is:

"Do the obligations in clause 9.6 apply to any period of work (including overtime hours), or do the obligations only limit the manner in which ordinary hours may be worked?"

[4] Following the hearing, it became apparent that the question posed at paragraph [3] above did not suitably clarify the issues actually in dispute between the parties and I sought the parties' views as to revised questions for arbitration. The parties consented to the revised questions for arbitration as follows:

"Is Metcash required by clause 9.6(1) of the Metcash Trading Limited Victoria Perishable Warehouse Operations Enterprise Agreement 2022 to provide an employee with a clear break from work of 12 hours between shifts irrespective of whether the period of work is in excess of, or outside of, the ordinary hours of work prescribed by clauses 6(1), 6(2), 6(3), and 7 of the Agreement? (Question 1)

If the answer to question 1 is yes, is Metcash required by clause 9.6(3) to pay an employee at the appropriate overtime rate until they are given a 12-hour break, even if mutual agreement has been reached to reduce the break to a break of less than 12 hours under clause 9.6(2)?" (Question 2)

[5] The Applicant submits that both questions are appropriately answered in the affirmative. As to Question 1, the Applicant posits that the Respondent is required by clause 9.6(1) of the Agreement to provide a clear break from work of 12 hours between any period of work, including both ordinary hours and overtime hours.[4] With respect to Question 2 the Applicant states that the Respondent "is required to pay an employee overtime rates pursuant to clause 9.6(3) in all circumstances in which they do not receive a 12 hour break, which includes when there is agreement to reduce the break pursuant to clause 9.6(2)", and Question 2 is to be answered "yes".[5]

[6] The Respondent disagrees and submits that, properly construed both questions are to be answered in the negative. As to Question 1, the Respondent submits that clause 9.6(1) operates only to limit the manner in which ordinary time hours are to be worked and not in respect of overtime.[6] With respect to Question 2 the Respondent states that it is "not required by clause 9.6(3) of the Agreement to pay an employee at the appropriate overtime rate until they are given a 12 hour break, even if mutual agreement has been reached to reduce the break to a break of less than 12 hours under clause 9.6(2) of the Agreement" and Question 2 is to be answered "no".[7]

[7] For the reasons below, I have determined that the answers to both questions 1 and 2 are in the affirmative.

[8] The Applicant filed an application on 28 August 2023. The matter was listed for conference on 22 September 2023.

[9] As the dispute was unable to be resolved at conference, it was listed for arbitration. The hearing took place on 20 February 2024. The Respondent sought permission to be represented under s.596 of the FW Act. I was satisfied having regard to the complexity of the matter that it would be dealt with more efficiently if the Respondent was permitted representation and accordingly, I exercised my discretion pursuant to s.596(2)(a) of the FW Act to grant permission to the Respondent.

[10] The parties provided a statement of agreed facts (SOAF) dated 7 February 2024 that is reproduced below (emphasis retained, footnotes and annexures omitted):

"1_. Parties and instrument_

1.1 The Metcash Trading Limited Victoria Perishable Warehouse Operations Enterprise Agreement 2022 was approved by the Fair Work Commission on 11 July 2022, and commenced operation on 18 July 2022. The Agreement is annexed and marked as Agreed Document 1.

1.2 The Agreement operates to the exclusion of the Storage Services and Wholesale Award 2020

1.3 Metcash Trading Limited is the employer bound by the Agreement.

1.4 The United Workers' Union is a party to the Agreement and is bound by its terms.

1.5. The Agreement covers employees of Metcash employed in the classifications set out in clause 19 of the Agreement, who perform work within Metcash's cold storage logistics operations in the State of Victoria.

1.6 6 The only site where employees covered by the Agreement currently perform work is Metcash's site in Laverton, Victoria.

2. Dispute and jurisdiction

2.1 A conference before the Commission was held on 22 September 2023. The parties were not able to reach a resolution at the conference.

2.2 The dispute resolution procedure in the Agreement has been complied with in all respects.

3. Previous instruments

3.1 When it was approved, the Agreement replaced the Metcash IGA Distribution Victoria Enterprise Agreement 2019 (2019 Agreement).

3.2 The 2019 Agreement incorporated the Award.[8] In the event of any inconsistency between the terms of the 2019 Agreement and the Award, the terms of the 2019

Agreement prevailed.

3.3 The 2019 Agreement replaced the IGA Distribution Vic Pty Ltd - National Union of Workers Enterprise Agreement 2015 (2015 Agreement).

3.4 The 2015 Agreement incorporated the Award. In the event of any inconsistency between the terms of the 2015 Agreement and the Award, the terms of the 2015

Agreement prevailed.

4. Current practices

4.1 Metcash has not, under the period of operation of the Agreement, provided overtime as part of an established rostering arrangement. Instead, overtime is performed on an ad hoc basis, as required and with the agreement of individual employees.

4.2 Metcash did not, under the period of operation of the 2019 Agreement, provide for overtime as part of an established rostering arrangement. Instead, overtime was performed on an ad hoc basis, as required and with the agreement of individual employees.

4.3 Metcash did not, under the period of operation of the 2015 Agreement, provide overtime as part of an established rostering arrangement. Instead, overtime was performed on an ad hoc basis, as required and with the agreement of individual employees.

4.4 Since this dispute was first raised by the Union in or around April 2023, Metcash has taken steps to ensure all employees receive a 12-hour break between two periods of duty, regardless of whether that duty is being performed as ordinary hours or overtime hours."[9]

[11] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term at clause 38. It is not in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution provision of the Agreement.[10] Having regard to the information in the Agreement, the Applicant's Form F10 application and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration.

Principles of Interpretation of Enterprise Agreements

[12] The principles applicable to the interpretation of enterprise agreements are well settled and were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri),[11] drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.[12] The Full Court of the Federal Court in WorkPac Pty Ltd v Skene (Skene),[13] and James Cook University v Ridd[14] have since further distilled these principles. The starting point is the ordinary meaning of the words, read as a whole and in context.[15] The language of the agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. The task of interpreting an enterprise agreement does not involve re-writing the agreement to achieve what might be regarded as fair or just outcome.[16]

[13] There appears to be no serious contest between the parties as to the applicable principles of interpretation of enterprise agreements. I adopt and apply the principles as cited above in this decision without restating them.

[14] The following relevant provisions of the Agreement are reproduced below:

The ordinary hours of work for day workers shall be an average of 38-hours per week over a four-week period, to be worked by means of four x 9.5-hour days:

(1) Between the hours of 06:00 and 17:00 Monday to Friday by employees employed

before 11 May 1998; and

(2) Between the hours of 0600 and 1930 Monday to Saturdays in accordance with clause

8 by new employees employed on or after 11 May 1998.

(3) The maximum number of ordinary hours on any day or shift for all employees shall be nine and a half. The minimum engagement on any day or shift shall be four hours.

7 Shift Work

(1) The Company may require any employee to perform his or her work in shifts, Monday

to Friday worked as four x 9.5 hour days.

(2) The commencing and finishing times of shifts shall be fixed by the Company and shall

not be altered except by one weeks' notice given by the Company.

7.2 Shift Work - Times

(a) "Afternoon Shift" means any shift finishing after 18:00 and at or before

01:00 except where employees on dayshift work in accordance with clause 6(2);

(b) "Night Shift" means any shift commencing at or after 20:00 and finishing at or before 07:00.

(2) Work performed on shifts shall receive the following loadings:

(a) Ordinary hours on any afternoon shift shall be at the ordinary hourly rate plus 20%.

(b) Ordinary hours on any night shift shall be at the ordinary hourly rate plus 30%.

7.3 Breaks for Shift Work

A paid meal break of thirty minutes shall be allowed to shift workers on all shifts to be taken as near as possible in the middle of the shift. This break shall be in substitution of the unpaid meal break.

8 Work Rosters

(1) The work rosters selected by the present permanent employees namely Roster 1 to 5 and the current Monday to Friday 38-hour week roster, are accepted:

Hours of Work

06:00 to 19:30 Monday to Friday Day Shift

06:00 to 19:30 Monday to Saturday Day Shift (6 Day Roster)

20:00 to 07:00 Sunday to Friday Night Shift

20:00 to 07:00 Sunday to Saturday Night Shift (6 Day Roster)

13:00 to 01:00 Monday to Friday Afternoon Shift

(2) Employees engaged after December 1993 will be required as part of their terms and

conditions of employment to work a roster nominated by the Company after consultation with their employee representative, if any.

(3) When Saturday is part of a normal roster, employees shall receive a loading of 50% in addition to the ordinary hourly rate.

(4) Employees commit to providing labour on overtime on Saturday and will not

unreasonably refuse to work. In the event that sufficient labour is not provided, the Company will, after consultation with employees and their representative, if any, invoke the Saturday roster to match the work volume required. Volunteers will be called for first.

(5) When Saturday is part of a normal roster, casuals shall not be asked to work Saturday

unless all permanent employees (including part-time) have been asked.

9 Overtime

(1) For the purpose of this Agreement, all work performed in excess of or outside the

ordinary hours of work prescribed by this Agreement or in excess of a part-time

employee's agreed hours shall be overtime.

(2) Overtime shall be paid at the rate of time and a half the ordinary hourly rate for the first two hours and double the ordinary hourly rate thereafter.

(3) No employee shall be required to work more than 14 hours in any one day.

(4) No employee shall be required to work more than 12 hours overtime in any one week.

(5) For the purpose of calculating overtime, each day or shift worked will stand alone.

9.2 Weekend Overtime

(1) Overtime on Saturday shall be paid at the rate of time and a half for the first four hours and double time thereafter.

(2) Work performed on Sunday shall be paid at the rate of double time.

(3) For employees engaged as shift workers, a shift that finishes either after 01:00 on

Saturday and/or before 21:15 on Sunday, will be paid at double time.

(4) Day workers shall receive treble the ordinary hourly rate for work in excess of nine and a half hours on a Saturday.

(5) Permanent employees will be consulted in the first instance for all opportunities to

perform overtime up to four hours or up to 9.5 hours on weekends/public holidays

(subject to business and customer requirements).

(6) An employee called upon to work overtime on a Saturday or Sunday shall receive a

minimum of four hours work or be paid at the appropriate rates.

All work done during a meal break shall be paid for at the rate of double the ordinary hourly rate.

(1) The Company and an employee may agree in writing to time off in lieu of the payment

of overtime (TOIL).

(2) The period of TOIL that an employee will be entitled to is equivalent to the payment for the overtime foregone, ie two hours worked shall equal three hours' time off at the

ordinary hourly rate.

(3) TOIL will be granted on the accumulation of nine and a half hours' TOIL and must be taken within four weeks of it being accrued.

(4) All applications for TOIL will be with mutual agreement with the Company. Should the TOIL not be taken within the four-week period, the overtime may be paid out.

(5) Accrued but unused TOIL shall be paid out upon termination.

(1) Permanent employees will be offered the opportunity to volunteer to work on their non workday/RDO.

(2) If an employee volunteers to work on their non-work day/RDO and the Company

accepts, employees shall be paid the ordinary hourly rate plus 34% with a minimum

engagement of four hours.

(3) This clause shall not apply where the Company directs an employee to work overtime.

(1) An employee shall have a clear break from work of 12 hours between shifts.

(2) An employee may by mutual agreement with the Company, return to work after a

break shorter than 12 hours but not less than 10 hours.

(3) If an employee does not have a 12-hour break between shifts they shall be paid at the

appropriate overtime rate until they are given that break.

10 Employment and Related Matters

A full-time employee is one who is engaged and paid by the week. The ordinary hours for a full-time employee shall be an average of 38 hours per week averaged over a four-week period.

(a) works fewer than 38 ordinary hours in any week;

(b) has reasonably predictable hours of work; and

(c) A part-time employee shall receive, on a pro rata basis, the equivalent pay

and conditions to those of full-time employees who do the same kind of work.

(2) Upon commencement with the Company, the Company and the part-time employee

will agree in writing on a regular pattern of work specifying the hours to be worked

each day (including start and finish times) and the days of the week to be worked.

(3) The Company and part-time employee can agree to a variation of the regular pattern

of work. The agreement to vary the pattern of work must be recorded in writing."

[15] The Applicant relied on written submissions and oral submissions at hearing. The Respondent relied on written submissions, oral submissions at hearing, and a witness statement from Mr Andrew North, Logistics Operations Manager of the Respondent, dated 17 January 2024. There is no real contest between the parties as to Mr North's evidence.

[16] For the sake of efficiency, I have not specifically reproduced every argument advanced by the parties in support of their respective positions, however in coming to my conclusion I have reviewed and considered all the material and submissions before me.

• The term "shift" in clause 9.6 is a "generic term" and applies to "all periods of work, including both ordinary hours and overtime hours".[17]

• Applying the purposive approach to interpretation, the "plain and ordinary meaning of the term "shift" in clause 9.6 of the Agreement in context means a period of work, whether ordinary hours or overtime".[18] The limitation on the performance of work in clause 9.6 includes "ordinary hours and overtime".[19]

• Although the term "shift" is used right through the Agreement it is "not a specifically defined term within the Agreement".[20]

• Properly construed, "the purpose" of clause 9.6 is "to provide for adequate breaks between work to allow employees to rest and manage fatigue. The employees of the Respondent perform 10-hour shifts of storage and packing work in a chilled environment. The employees regularly drive forklifts and other machinery to move products and other materials around the worksite. Such work is arduous, difficult, and tiring".[21]

• The intrinsic work performed by the relevant employees remains the same, whether the work is performed as part of ordinary or overtime hours and does not impact on the requirement for there to be a break between periods of work. Fatigue and health and safety risks arise following "returning to work after inadequate rest".[22] The purpose of clause 9.6 is "only achieved if it provides for a break of 12 or 10 hours between all periods of work, rather than just periods of ordinary hours". [23]

• The Respondent's interpretation may result in "industrially unsound" outcomes that are "inconsistent with the purpose of the clause" such as an employee permissibly performing a work pattern that provides for "8 hours between work, but 12 hours between shifts of ordinary hours", resulting in an employee "getting 6 hours of sleep between 14 hour shifts".[24]

• Clause 6(1) deals in part with employees engaged prior to 11 May 1998. With respect to those employees, work performed on Saturdays is "outside the span of ordinary hours and is therefore overtime".[25] If the Respondent's interpretation was accepted, "an employee engaged prior to 1998 could complete their ordinary hours of work for the week on Friday night and be able to commence work on the Saturday as early as 12.01am because the hours performed on Saturday are not ordinary hours".[26]

• The Respondent's construction of the clause is "overly literal and pedantic" and "seeks to ascribe a meaning to the term "shift" which produces industrially unsound and unsafe outcomes".[27] The Respondent's interpretation of the term "shift" is "not derived from the word being a clearly defined term within the Agreement, but only from inference from its generic use throughout the Agreement".[28]

• There is no industrial, logical, or textual basis to conclude that the 10 hour break provided for in clause 9.6(2) applies to all work while the 12 hour break stipulated by clauses 9.6(1) and 9.6(3) is to apply only between periods of ordinary hours. [29]

• Clause 8, dealing with arrangements for rostering ordinary hours, does not provide for any requirement for a "12 or 10 hour break between the rostering of ordinary hours. If the purpose of the clause was to regulate the rostering of shifts of ordinary hours, it would be reasonable to expect the drafters to have included such a clause within the broader rostering provisions".[30]

• The Applicant's contention that the "breaks provided for in the clause are breaks between periods of all work and not just between periods of ordinary hours"[31] is supported by "the structure of clause 9.6 as a whole"[32]

• Clause 9.6(1) is the operative clause governing breaks between shifts. The inclusion of the phrase "from work" clearly demonstrates that the foundational entitlement in the clause is to have a 12-hour break "from work" and not only from work which constitutes a shift of ordinary hours".[33]

• The two elements of clause 9.6(1) in "break from work of 12 hours" and "a break from work of 12 hours between shifts" can only interact and be applied in a "consistent and industrially harmonious way" if a "shift" is "a period of work, inclusive of ordinary and overtime hours".[34]

• Clause 9.6(3) provides for employees to be paid at the "appropriate overtime rate if they do not receive a "12 hour break "between shifts". In addition, when an employee agrees to return to work with a break of less than 12 hours but at least 10 hours pursuant to clause 9.6(2), the employee is paid at the appropriate overtime rate by operation of clause 9.6(3). [35]

• Clause 9.6(1) stipulates that "an employee shall have a clear break from work of 12 hours between shifts", while clause 9.6(3) contemplates "a 12-hour break between shifts". Clause 9.6(1) "makes clear that the break between shifts must be a clear "break from work of 12 hours", while clause 9.6(3) does not use the term "work". There must be a consistent nature and meaning of the break of 12 hours contemplated in clause 9.6(1) unless the 12-hour break expressed in clause 9.6(1) does not "directly correlate" with the overtime payable in clause 9.6(3).[36] As clause 9.6 is "clearly dealing with the same subject matter and context throughout", it is evident that only a construction in which the "12 or 10 hour break is treated consistently" and refers to "all hours" is "permissible having regard to the plain language, context, and purpose of the clause".[37]

• Clause 9 deals with overtime and clause 9.6 as a subclause of clause 9 must be read and "understood in its context". Clause 8, dealing with "work rosters" sets out at clause 8(1) the rostering of ordinary hours. If clause 9.6 was intended to require employees to have a 12-hour break between shifts of ordinary hours, it "more logically belongs in clause 8 which deals with rostering of ordinary hours".[38]

• The primary focus in interpretation of clause 9.6 is on the text of the Agreement. Clause 25.1 of the 2019 Agreement and clause 24.4 of the 2019 Award are "extraneous materials"[39] and do not provide assistance in the construction and interpretation of clause 9.6. Further, the Award is not incorporated in the Agreement, rendering the Respondent's argument a "moot point". [40]

• The Respondent is able to vary an employee's ordinary hours so that they may be performed while still providing breaks between work in accordance with clause 9.6. Further, the Respondent is able to average an employee's ordinary hours over a period of 4 weeks. It is incumbent on the Respondent to "properly manage the competing requirements of ordinary hours and breaks in a way which is consistent with the Agreement".[41]

• The analysis of the below clauses "reflects that the meaning and use of the term "shift" differs throughout the Agreement" and that "at its core, the term refers to a continuous period of work which is consistent with the UWU's contention that clause 9.6 of the Agreement regulates all work and not just rostered shifts of ordinary hours".[42]

o Clause 6(3) is "properly understood" within the context of clause 6, which is titled "Hours of Work". Clause 6 firstly states that "the ordinary hours of work for day workers shall be an average of 38-hours per week over a four-week period, to be worked by means of four x 9.5-hour days." The clause then "stipulates the span of ordinary hours for day workers".[43]

o Clause 6(3) "limits the hours in a shift that can be considered ordinary hours but it does not state a shift is limited to a period of ordinary hours". Pursuant to clause 6(3), an employee can "work a 12 hour shift" where "9.5 of those hours are ordinary hours and 2.5 are overtime hours". There is no limitation in clause 6(3) for a "shift" to only refer to ordinary hours". [44]

o Clause 6(3) also provides that the "the minimum engagement on any day or shift shall be four hours." There is no limitation pursuant to clause 6(3) for the minimum engagement to be exclusively ordinary hours. This demonstrates that a "shift is a continuous period of work which may be constituted by both ordinary and overtime hours" and is "industrially sound, because if the term "shift" meant exclusively ordinary hours then an employee would have no minimum engagement if that engagement consisted solely of overtime". [45]

o Clause 7 provides for additional payments to be made to employees engaged on shift work and operates for employees on a different span of ordinary hours than that of day workers. In clause 7 "shift" means "solely an afternoon or night shift and not a broader shift of any period of ordinary hours.[46] This reflects the "changeable nature" of the term "shift" and that the "meaning of the term in one clause may not be the same as the meaning of the term in another".[47]

o The roster patterns at clause 8(1) "contain both overtime and ordinary hours".[48] This reflects how the word "shift" is used to "denote work performed at different times throughout a 24 hour operation".[49]

o Clause 9.2(3) which concerns "weekend overtime", uses "shift to refer to overtime"[50] in that it "requires payment at double time for a shift that finishes either after 1.00am on Saturday and/or before 9.15pm on Sunday".[51]

o The reference in clause 12.1 (4) to an employee's shift when dealing with meal allowance is "likely referring to a shift of ordinary hours, however this does not necessarily mean that the term "shift" has the same meaning throughout the Agreement".[52]

o Clause 15(2) and the meaning of the term "shift" within the clause "does tell against the Respondent's contention" and supports the Applicant's contention that "each use of the term "shift" is primarily informed by the language, context, and purpose of the clause in which it is found".[53]

o Clause 21.1(3) concerning annual leave and clause 40.10(2) concerning WorkCover additionally use the term "shift" to refer to a "shift which attracts a penalty rate (afternoon or night shift)".[54]

• The Respondent's submissions with respect to the history and genesis of the Agreement "do not adhere to the principle of construing an enterprise agreement with an emphasis on the actual words of the document". [55]

• While the Respondent "does not engage part-time employees under the Agreement", clause 10.2(3) provides for "a part-time employee and Metcash to agree to vary the employee's regular pattern of work in writing. This creates significant flexibility in which the employee and Metcash can agree to move or vary the employee's ordinary hours so they may perform the necessary number in a given week or period".[56]

• The interaction between clauses 9.1(3), 9.1(4) and 9.6(2) "reduces the potential number of scenarios in which an employee would be actively prevented from performing their rostered ordinary hours" and "ameliorates the potential" that an employee would regularly perform overtime to the extent that they "would not receive a 12 or 10 hour break prior to performing their rostered ordinary hours".[57]

• Clause 9.6 has a "narrower meaning which is to limit the manner in which ordinary hours may be worked".[58]

• Clause 9.6 "properly construed" is limited to "shifts" which comprise of "ordinary hours only (thereby excluding from the operation of the term a period of work which includes overtime, (either singularly or when worked continuously before or after ordinary hours)".[59]

• Clause 9.6 has a plain and ordinary meaning. This is having regard to its context and purpose which is evident from "various textural features of the Agreement", and "the history of the term, in particular the instrument which immediately preceded the Agreement and from which the extant provision was directly replicated".[60]

• Clauses 9.6(1) and 9.6(3) "establish the obligation for a break of "12 hours" by reference to such break occurring "between shifts". It follows that the term "shift" must be defined to ascertain whether the obligation to have the 12 hour break "has been enlivened". [61]

• The following clauses of the Agreement lend support to the submission that the term "shift" in clause 9.6 means "a period of work which includes ordinary hours only"[62]:

(a) Clause 6(3) provides that "the maximum number of ordinary hours on any day or shift for all employees shall be nine and a half. "[63]

(b) Clause 7.1(1) provides that "the Company may require any employee to perform his or her work in shifts, Monday to Friday worked as four x 9.5 hour days. Such an arrangement totalling 38 hours being the same number of ordinary hours prescribed by the Agreement".[64]

(c) Clause 7.1(2) provides that "the commencing and finishing times of shifts shall be fixed by the Company and shall not be altered except by one weeks' notice given by the Company". This reflects the "formulation of rosters for the performance of ordinary hours of work". If "shifts" in this context were inclusive of overtime hours, the Respondent would be prevented from "having employees work ad-hoc overtime" as starting and finishing times would need to be altered within seven days as prohibited by the clause. [65]

(d) Clauses 7.2(1) and 7.2(2) collectively outline "the span of hours for afternoon and night "shift" and the loading to be paid for "ordinary hours". Read in conjunction with clause 9.1(1), headed "overtime" providing that "work outside of ordinary hours should be overtime", it is apparent that clause 7.2 "shift work - times" concerns the "ordinary hours of a "shift".[66]

(e) Clause 8(1) identifies the current span of hours for the "38 hour week roster", which is the "roster for the performance of ordinary hours."[67] consisting of the "Day shift", "Day shift (6 Day Roster)", "Night shift", "Night shift (6 Day Roster)", and "Afternoon Shift".[68]

(f) Clause 12.1(4) concerns an employee's "meal allowance entitlement" and states "a separate meal allowance must be paid where overtime is worked both before and after the employee's shift" This clause identifies "overtime" as "treated separately to the identification of the employee's shift". [69]

• Clause 9.6 of the Agreement has a "relevant reference point from the terms of the 2019 Agreement being the enterprise agreement that applied to the Respondent and the relevant employees covered by the current Agreement immediately prior to the Agreement being made".[70] This is found at clause 25 of the 2019 Agreement.[71] With the "exception of the reformatting of the clause, such that each sentence is structured as its own discreet sub-clause", the terms of clause 25.1 of the 2019 Agreement, and clause 9.6 of the current Agreement are "identical".[72]

• This can "be contrasted with the term contained within the 2015 Agreement and the enterprise agreements which pre-dated the 2015 Agreement, which although bearing the same clause title as the provision in the 2019 Agreement, were wholly different in its terms and its application".[73]

• The terms of the 2019 Agreement and the current Agreement are effectively "on all fours" as it "relates to the express terms of each enterprise agreement concerning hours of work, such that the 2019 Agreement can be an aid to the construction of the disputed term".[74]

• Several features of the 2019 Agreement including clauses 4.1 and 25.1 operate to support the Respondent's construction of clause 9.6 of the current Agreement. Further, the entirety of the 2019 Award was incorporated in the 2019 Agreement.[75] The fact the current Agreement no longer incorporates the Award does not "alter" the meaning and operation attributed to clause 9.6 of the current Agreement from clause 25.1 of the 2019 Agreement.[76]

• The Applicant's submission that the inclusion of the phrase "from work" in clause 9.6(1) means that the clause "can only properly and coherently operate if the 12 hour break applies to all periods of work"[77] is "trite",[78] "unremarkable",[79] and "does nothing to inform the Commission of the specific circumstances in which a "shift" is said to exist in order to qualify for the break".[80]

• The Applicant's construction of clause 9.6(2) is "not tenable as it effectively renders the mechanism to reduce the 12-hour break under clause 9.6(2) redundant".[81] Clause 9.6(2) is "nothing more than a facilitative term"[82] which allows a 12 hour break to be reduced to 10 hours subject to agreement and it "does not have its own independent force such that it informs interpretation of the term "shift" in the sub-clauses that precede and follow it".[83]

• Whilst clause 9.6 is "positioned as a sub-clause within the overtime clause of the Agreement, that does not mean that it is intended to "deal(s) with the working of overtime".[84] The textual features of the Agreement in support of the interpretation that clause 9.6 "operates only in respect of ordinary hours outweigh any inference created by its positioning in clause 9 of the Agreement". [85]

• The Applicant's construction of clause 9.6 has a "substantial and unanswered problem"[86] in that there is no mechanism in the Agreement to recognise ordinary hours not worked due to the granting a 12-hour break following the performance of overtime. As such, if Clause 9.6 applies to overtime hours worked, the 12-hour break following overtime is likely to lead to a shortfall in the "requisite number of ordinary hours required in that rostered week to meet the definition of a full-time employee or the agreed regular pattern of work required of a part-time employee".[87]

• The Applicant's interpretation of clause 9.6 will further lead to a "range of negative consequences"[88] including shortfalls of leave accruals, superannuation, and ordinary hours worked in a particular week. The "realities" of the shortfall of entitlements arising from the Applicant's construction of clause 9.6 therefore make it "more likely" to "be a function of a rostering arrangement of ordinary hours as opposed to something that is triggered on an ad-hoc basis".[89]

[19] As stated above, for the sake of efficiency I have not specifically addressed every argument advanced by the parties in support of their respective positions, however in coming to my conclusion, I have reviewed and considered all the material and submissions before me.

[20] The dispute pertains to clause 9.6 of the Agreement headed "Breaks between shifts". That said, context is provided by other clauses of the Agreement and in particular, clauses 6,7, and 8.

[21] Clause 6 headed "Hours of Work" provides that "the ordinary hours of work for day workers shall be an average of 38 hours per week over a four-week period to be worked by means of four 9.5-hour days". For employees employed before 11 May 1998, it provides that the 38 hours per week are to be worked with a span of hours between 6.00am and 5.00pm Monday to Friday. Employees employed on or after 11 May 1998 are to work the abovementioned 38 hours with a span of hours between 6.00am and 7.30pm Mondays to Saturdays.

[22] Clause 7 headed "Shift Work" provides that the Respondent may require any employee to perform his or her work in shifts, Monday to Friday worked as four x 9.5 hour days. It does not differentiate between pre and post 11 May 1998 employees.

[23] Clause 7.2 headed "Shift Work - Times" provides at clause 7.2(1)(a) that "Afternoon Shift" means any shift finishing after 6.00pm and at or before 1.00am and at clause 7.2(2)(a) that ordinary hours on any afternoon shift shall receive the loading of the ordinary hourly rate plus 20%. Clause 7.2(1)(a) excludes those employees to whom clause 6(2) applies (those employees working between 6.00am and 7.30pm Mondays to Saturdays).

[24] Clause 7.2(1)(b) provides that "Night Shift" means any shift commencing at or after 8.00pm and finishing at or before 7.00am and at clause 7.2(2)(b) that ordinary hours on any night shift shall receive the loading of the ordinary hourly rate plus 30%.

[25] The dispute before me relates to both day workers and shift workers. Day workers employed on or after 11 May 1998 are engaged to work four shifts of 9.5 hours between 6.00am to 7.30pm Monday to Saturday, totalling 38 ordinary hours a week. Day workers employed before 11 May 1998 are engaged to work four shifts of 9.5 hours between 6.00am and 5.00pm Monday to Friday, totalling 38 ordinary hours a week.

[26] "Afternoon Shift" workers are engaged to work 4 shifts of 9.5 hours finishing after 6.00pm and at or before 1.00am. "Night Shift" workers are engaged to work 4 shifts of 9.5 hours commencing at or after 8.00pm and finishing at or before 7.00am.

[27] It is not in dispute that overtime is performed on an ad hoc basis, no overtime is regularly rostered, and employees are only ever required to work overtime to deal with temporary spikes in operational requirements.[90] Further, the parties agree that since this dispute was first raised by the Applicant in or around April 2023, the Respondent has taken steps to ensure all employees receive a 12-hour break between two periods of duty, regardless of whether that duty is being performed as ordinary hours or overtime hours.[91]

[28] Clause 8 of the Agreement headed "Work Rosters" sets out five roster patterns and sets out the "the work rosters selected by the present permanent employees namely Roster 1 to 5 and the current Monday to Friday 38-hour week roster, are accepted".

[29] As stated earlier, clause 9.1 provides that "for the purpose of this Agreement, all work performed in excess of or outside the ordinary hours of work prescribed by this Agreement or in excess of a part-time employee's agreed hours shall be overtime".

[30] Clause 9.6, as stated earlier, sets out that "an employee shall have a clear break from work of 12 hours between shifts" (clause 9.6(1)), "an employee may by mutual agreement with the Company, return to work after a break shorter than 12 hours but not less than 10 hours" (clause 9.6(2)), and "if an employee does not have a 12-hour break between shifts they shall be paid at the appropriate overtime rate until they are given that break" (clause 9.6(3)).

[31] Taken together, these provisions establish a mechanism for the rostering of ordinary hours of work fixed by clauses 6 and 7 pursuant to the work rosters set out in clause 8. Work performed or required to be performed outside of the limits on ordinary hours set out in clauses 6 and 7 or the work rosters set out in clause 8 triggers the payment of overtime under one of the circumstances listed in clause 9. The Agreement makes provision for the working of ordinary hours for which a base rate, or a weekend or shift work loaded base rate is payable and for the working of reasonable overtime hours for which an overtime rate is payable. Put another way, the Agreement manifests the intention, through the interrelationship between clauses 6, 7, 8, and 9, that an entitlement to overtime arises when an employee works outside, or in excess, of ordinary hours rostered in accordance with the work rosters.

[32] In my view, the appropriate construction of the term "shift" in clause 9.6 sits comfortably with that advanced by the Applicant. I agree with the Applicant that at its core, the term "shift" in clause 9.6 refers to a continuous period of work and not just rostered shifts of ordinary hours. The ordinary meaning of the words in clauses 9.6(1) and (2) taking into account their context and purpose are that an employee is entitled to a "break from work" of 12 hours or shorter than 12 hours but not less than 10 hours by agreement. I accept the Applicant's submission that clause 9.6 has the purpose of ensuring "adequate breaks between work to allow employees to rest and manage fatigue".[92] I have taken into account clause 9.6(3) and its interaction with clauses 9.6(1) and (2) and agree with the Applicant that "the nature and the meaning of the break of 12 hours throughout clause 9.6 must be consistent"[93] and that only their construction is "permissible having regard to the plain language, context and purpose of the clause".[94]

[33] The Agreement is structured in a way that differentiates between ordinary hours of work and their permissible rostering on the one hand and working hours which attract overtime payments on the other. This is evident from the relationship between each overtime triggering event in clause 9 and the corresponding provisions dealing with ordinary hours of work and rostering in clauses 6, 7 and 8. I agree with the Applicant that:

• Clause 6 firstly states that "the ordinary hours of work for day workers shall be an average of 38-hours per week over a four-week period, to be worked by means of four x 9.5-hour days." The clause then stipulates the span of ordinary hours for day workers.[95]

• The term "shift" is "used to denote a continuous period of work and is a generic term".[96]

• Clause 6(3) "limits the hours in a shift that can be considered ordinary hours", but it "does not state a shift is only a period of ordinary hours". Clause 6(3) "does not limit the definition of "shift" to only refer to ordinary hours". It "also limits the number of ordinary hours in a day because a shift may go over two days i.e. a night shift".[97]

• Clause 6(3) states that "the minimum engagement on any day or shift shall be four hours", without limiting the minimum engagement to ordinary or overtime hours. Clause 6(3) demonstrates that the term "shift" in the Agreement operates as "a continuous period of work which may be constituted by both ordinary and overtime hours".[98]

• Clause 7 provides for additional payments to be made to employees engaged on shift work and operates for employees on a different span of ordinary hours than that of day workers. In clause 7 "shift" means "solely an afternoon or night shift and not a broader shift of any period of ordinary hours.[99] This reflects the "changeable nature" of the term "shift" and that the "meaning of the term in one clause may not be the same as the meaning of the term in another".[100]

• Clause 8(1) provides for "roster patterns which contain Saturdays and Sundays - days which are outside the span of ordinary hours". As such, the roster patterns set out in clause 8(1) "contain both overtime and ordinary hours". Accordingly, the use of the word "shift" in clause 8(1) is "used to denote work performed at different times throughout a 24-hour period".[101]

• Clause 9.2(3) which concerns "weekend overtime", uses "shift to refer to overtime"[102] in that it "requires payment at double time for a shift that finishes either after 1.00am on Saturday and/or before 9.15pm on Sunday".[103]

• The reference in clause 12.1(4) to an employee's shift when dealing with meal allowance is "likely referring to a shift of ordinary hours, however this does not necessarily mean that the term "shift" has the same meaning throughout the Agreement".[104]

• Clause 21.1(3) concerning annual leave and clause 40.10(2) concerning WorkCover additionally use the term "shift" to "refer to a shift which attracts a penalty rate (afternoon or night shift)".[105]

• The analysis of the above clauses reflects that "the meaning and use of the term "shift" differs throughout the Agreement".[106] Each use of the term "shift" is "primarily informed by the language, context, and purpose of the clause in which it is found". On this basis, "no inference can be drawn from the usage of the term throughout the Agreement which may contradict the plain and ordinary meaning of the words used in clause 9.6, taking into account the structure, context and purpose of the clause".[107]

[34] The Respondent's assertion that clause 9.6 ought to be given a narrower meaning such as to limit the manner in which ordinary hours may be worked is in my view, an overly "narrow or pedantic approach"[108] to the construction of the provision, and in essence would require an impermissible rewriting of the Agreement.

[35] Given my findings above, I do not need to consider the Respondent's submissions as to the history of the Agreement and the source of the disputed term. It is apparent that unlike the current Agreement which expressly excludes the operation of the Award, the 2019 Agreement incorporated the 2019 Award. There is insufficient evidence before me to make any meaningful findings as to the operation of the 2019 Agreement. Nor am I prepared to draw the inferences urged by the Respondent as to the operation of the 2019 Agreement and its application to the interpretative analysis before me.

[36] Ultimately, I agree with the Applicant that it is a "moot point whether the two clauses operated together in the 2019 Agreement because that agreement is not the subject of the dispute, and the Award has since been unincorporated".[109] It is well established that "admissible extrinsic material may be used to aid the interpretation of a provision in an agreement, but it cannot be used to disregard or rewrite the provision to give effect to an externally derived conception of the parties' intention or purpose".[110]

[37] Given my findings that the term "shift" in clause 9.6 refers to a continuous period of work and not just rostered shifts of ordinary hours, it follows that a plain reading of clause 9.6(1) clearly and inexplicably requires an employee to "have a clear break from work of 12 hours between shifts" irrespective of whether the "shift" is ordinary hours or overtime, and Question 1 is to be answered in the affirmative.

[38] As stated earlier, the parties seek an answer to Question 2 as follows:

"If the answer to Question 1 is yes, is Metcash required by clause 9.6(3) to pay an employee at the appropriate overtime rate until they are given a 12 hour break, even if mutual agreement has been reached to reduce the break to a break of less than 12 hours under clause 9.6(2)?"

[39] Clause 9.6(3) "requires that any employee who does not receive a 12 hour break between "shifts" must be paid at overtime rates until they receive a 12 hour break".[111] The "only circumstance"[112] in which an employee may "lawfully"[113] receive a break of less than 12 hours "is if they agree to it under clause 9.6(2)",[114] and therefore "the only circumstance in which clause 9.6(3) is enlivened is when agreement is reached to reduce the break under clause 9.6(2)".[115]

[40] The Respondent's interpretation gives clause 9.6(3) "no work to do"[116] as "the only circumstance where an employee can return to work with a break of less than 12 hours is by agreement in accordance with clause 9.6(2)."[117] If an employee's break is less than 12 hours, it is "solely because that has been agreed under subclause 9.6(2)"[118] and "there is no textual basis to assert that the employee has also agreed to forego overtime payments pursuant to clause 9.6(3)".[119]

[41] The Respondent's interpretation is "fatally flawed" [120] because it would cause clause 9.6(3) to "only be enlivened upon contravention of clause 9.6(1)."[121] Further, if the Respondent was to contravene clause 9.6(1), it is "simultaneously contravening section 50 of the FW Act"[122] which would expose the Respondent "to the imposition of pecuniary penalties".[123] Payment of overtime under clause 9.6(3) is "not an adequate remedy for contravention of subclause 9.6(1) and the contravention could still be litigated in Court".[124]

[42] Clause 9.6 operates in accordance with the following "four interlinking purposes"[125] as follows:

• To strictly prohibit an employee having an insufficient break between shifts.[126]
• To permit flexibility in the length of breaks between shifts but only upon an employee exercising their agency and agreeing to reduce their break between shifts.[127]
• To financially disincentivise the Respondent from requesting an employee reduce their break between shifts to less than 12 hours and;[128]
• To provide a financial reward for an employee who agrees to reduce their break. [129]

[43] Clause 9.6(3) has a "clear, plain, and ordinary meaning".[130] The clause makes "clear and coherent sense"[131] and requires the "payment of overtime if an employee does not receive a 12 hour break even if they agree to the reduction in the break".[132]

[44] Enterprise agreements "routinely and characteristically regulate and limit managerial prerogative"[133] and employees are "not required to follow directions which are not lawful and reasonable".[134] As clauses 9.6(1) and (2) use "mandatory language"[135] requiring at least a 10 or 12 hour break between shifts, "any direction to perform work which is inconsistent with these provisions would be an unlawful and/or unreasonable direction"[136]

[45] The Respondent refers to a variety of examples in the 2019 Award that it "alleges support its contention that that it is a common drafting convention for a facilitative term to alter the operation of a loading, allowance or penalty and that effect to not be expressly articulated within the term"[137] and that "the consequential effect of the facilitative arrangement is necessarily inferred".[138] This submission is "misplaced"[139] because it "characterises clause 9.6 as the same as the respective clauses used as examples when they are not".[140] Each of the "facilitative arrangements referred to by the Respondent in support of its contention are arrangements which change the nature of certain hours of work by agreement"[141] and "clause 9.6(2) does not change hours of work, it necessarily deals with breaks between work which are obviously hours that are not work".[142]

[46] The "loading or penalty payable under the 2019 Award for certain hours which may be varied or changed by agreement"[143] is "payable in accordance with the amended hours not by inference, but by necessity".[144] These "two clauses or requirements cannot operate harmoniously as they are directly contradictory - either hours over 8 and less than 10 are ordinary hours or they are not"[145] and "a choice must be made for a coherent operation of the 2019 Award".[146]

[47] This can be distinguished from the Agreement where clauses 9.6(2) and 9.6(3) "can operate harmoniously on their face".[147] Under clause 9.6(2) "an employee can agree to return to work with less than a 12-hour break. If this occurs then they are paid overtime because they have not received a 12 hour break. There is no inconsistency".[148]

[48] The Respondent's contention that there is contextual support for its interpretation in clauses 5(1), 6(2), 6(3), 7.1(2), 8(4), 9.1(3), and 9.1(4) of the Agreement is a "vague inference",[149] "strained", [150]and "entirely unfounded".[151]

[49] Clause 9.6(3) "operates at large to any circumstance where less than a 12-hour break is provided and mutual agreement has not been reached to reduce the break in accordance with clause 9.6(2) - that is it operates as a penalty for failing to provide a break between shifts in a manner that is contemplated by clause 9.6(1) or 9.6(2)."[152] (emphasis retained).

[50] The Agreement permits employees returning to work with a break of less than 10 hours or a break of less than 12 hours (but at least 10 hours) without mutual agreement, but "comes with the requirement to pay the penalty prescribed by clause 9.6(3)".[153] The Respondent therefore submits that the answer to Question 2 is "no" and that it "is not required by clause 9.6(3) of the Agreement to pay an employee at the appropriate overtime rate until they are given a 12 hour break, even if mutual agreement has been reached to reduce the break to a break of less than 12 hours under clause 9.6(2) of the Agreement".[154]

[51] The "interrelationship"[155] between clauses 9.6(1), (2), and (3) can be summarised as follows:

• Clause 9.6(1) establishes the "general rule",[156] clause 9.6(2) establishes a "facilitative arrangement"[157] and clause 9.6(3) "creates the payment of a penalty should the general rule as lawfully amended by the facilitative arrangement not be met".[158]

• Clauses 9.6(1)-(3) appear in the 2019 Agreement as a single clause. As such, "there is a clear source from which the extant Agreement term grew"[159] which "allows the Commission to consider the extant term, in the context of the 2019 Agreement"[160] and "when read as a singular term, there is a stronger structural logic to the interpretation it advocates for".[161]

• Clauses 22.1 and 25.1 of the 2019 Award (the "underpinning and incorporated Award to the 2019 Agreement") can be observed as an example of a "drafting convention" that "if a specific facilitative term would alter the operation of a loading, allowance or penalty, such alteration was not expressly articulated within the term relating to that loading, allowance or penalty", and that "instead, the consequential effect of the facilitative arrangement is necessarily inferred".[162] Further, "that an inference is required" to give effect to the Respondent's interpretation is "not remarkable and indeed entirely conventional with how facilitative arrangements have operated within industrial instruments, including the Award that was relevant at the time that the text of the disputed clause was being created (i.e. for the 2019 Agreement)".[163]

[52] The Applicant's interpretation of clause 9.6(2) leaves clause 9.6(3) with "no work to do"[164] as the requirement under clause 9.6(2) for the Respondent to reach mutual agreement with an employee to reduce the break of 12 hours to a "lesser period" does not have a "point" if the "penalty within clause 9.6(3) is applicable whether there is mutual agreement or not".[165]

[53] The Applicant's interpretation "would substantially limit managerial prerogative and the ability to meet operational requirements (because all work within a 10-hour period is effectively outlawed and could not be performed in any circumstance)".[166]

[54] The following terms of the Agreement provide contextual support that the Applicant's interpretation of clause 9.6(2) is "illogical":

(a) Clause 5(1) which identifies that "the Agreement operates in conjunction with the NES. The NES relevantly includes terms which permit the working of reasonable additional hours by employees (s. 62(2) of the FW Act)".[167]

(b) Clause 6(2) provides for the span of hours for day work employees (6.00am - 7.30pm). As there are only 10.5 hours between the conclusion time and the time day work can recommence, a "day worker" rostered to finish a "day work shift" at 7:30pm would be unable to return to work on a rostered shift earlier than 7.30am the next day.[168]

(c) Clause 7.1(2) and Clause 8 which "contemplate that notwithstanding whatever shift arrangements (starting and finishing times) operate at present, those arrangements can be subject to change".[169]

(d) Clause 8(4) which "provides a right for the Company after consultation to invoke a Saturday roster to match the work volume required" [170]; and

(e) Clauses 6(3), 9.1(3) and 9.1(4) which "already provide significant (and immovable) protections in relation to the maximum number of ordinary hours, the total number of hours per day and the maximum number of weekly hours respectively that can be worked by employees".[171]

[55] There is no evidentiary, textual, or extrinsic support for the Applicant's submission that their interpretation is to be preferred "because of work health and safety obligations, or the need to manage risk and fatigue".[172] Clause 9.6 is "not the source of its sole obligation as it relates to fatigue management or health and safety". Further, the Respondent's work health and safety obligations chiefly rest within the Occupational Health and Safety Act 2004 (Vic) and "the terms of the Agreement should not be given some privileged or elevated status as the last bastion to ensure workplace health and safety in the absence of a clear indication that such an application was intended".[173]

[56] As stated above, clause 9.6(1) provides that employees shall have a clear break from work of 12 hours between shifts, and clause 9.6(2) permits by mutual agreement with the Respondent an employee returning to work after a break from work shorter than 12 hours but not less than 10 hours.

[57] I agree with the Applicant that clause 9.6 has a "clear, plain, and ordinary meaning".[174] It requires a 12 hour break from work between shifts in accordance with clause 9.6(1). Clause 9.6(2) permits a lesser break of shorter than 12 hours but not less than 10 hours. In my view, clause 9.6(3) is enlivened and has work to do if an employee returns to work from a break shorter than 12 hours but not less than 10 hours in accordance with clause 9.6(2). It follows that I accept the Applicant's contention that the answer to Question 2 is in the affirmative.

[58] I accept the Applicant's submission that the "four interlinking purposes" of clauses 9.6(1), (2) and (3) construed together are "clear"[175] and that it "operates as part of a broader set of industrial or legislative rights and protections".[176] Clause 9.6(1) provides "a strict prohibition against an employee having an insufficient break".[177] Clause 9.6(2) permits "a degree of flexibility in the length of the break between shifts but only upon an employee exercising their agency and agreeing to reduce their break between "shifts".[178] Clause 9.6(3) creates "a financial disincentive for Metcash to request an employee to reduce their break to less than 12 hours", and "financially reward (s) an employee who agrees to reduce their break".[179] I am of the view that the "clear, plain, and ordinary meaning" of clause 9.6 as outlined at paragraphs [32] and [58] evidently accords with these purposes.

[59] In my view, the 2019 Award does not inform my interpretive analysis of the Agreement. The examples referred to by the Respondent concern two clauses of the 2019 Award that require the determination of ordinary hours and change the nature of hours of work by agreement. This requires an inference to be made that ordinary hours do not attract overtime to cohesively operate. I agree with the Applicant that this differs to clauses 9.6(2) and (3) which can "operate harmoniously on their face".[180] Further, as outlined at paragraphs [35] and [36], I am not prepared to make any meaningful findings as to the operation of the 2019 Agreement or the 2019 Award and their application to the interpretative analysis before me.

[60] I do not accept the Respondent's submission that other clauses of the Agreement provide contextual support for its interpretation of clause 9.6. The clauses in the Agreement referred to by the Respondent and set out at paragraph [55] above do not inform my interpretation such as to depart from the plain and ordinary meaning of the words.

[61] I do not accept the Respondent's submission that the Applicant's interpretation "limits managerial prerogative".[181] It is well established that "managerial prerogative cannot override the terms of an enterprise agreement".[182] It is incumbent on the Respondent to meet its operational requirements within the bounds of the Agreement it has made with its employees. I do not consider the minimum break between shifts imposed by clauses 9.6(1) and 9.6(2) to impede on operations such as to be an excessively burdensome or absurd requirement.

[62] In my view, the interpretation advanced by the Respondent requires a rewrite of the clause to accord with its preferred interpretation.

[63] On the basis of the material before me, I am satisfied that the Respondent is required by clause 9.6(3) to pay an employee at the appropriate overtime rate until they are given a 12 hour break, even if mutual agreement has been reached to reduce the break to a break of less than 12 hours under clause 9.6(2), and Question 2 is to be answered in the affirmative.

[64] For the reasons set out above, I answer the questions posed for arbitration as follows:

Question 1: Is Metcash required by clause 9.6(1) of the Metcash Trading Limited Victoria Perishable Warehouse Operations Enterprise Agreement 2022 to provide an employee with a clear break from work of 12 hours between shifts irrespective of whether the period of work is in excess of, or outside of, the ordinary hours of work prescribed by clauses 6(1), 6(2), 6(3), and 7 of the Agreement?

Question 2: If the answer to Question 1 is yes, is Metcash required by clause 9.6(3) to pay an employee at the appropriate overtime rate until they are given a 12-hour break, even if mutual agreement has been reached to reduce the break to a break of less than 12 hours under clause 9.6(2)?

[3] Statement of Agreed Facts (SOAF) at 1.6.6.

[5] Applicant's Supplementary Reply Submissions at [36].

[6] Respondent's Outline of Submissions at 5.1.

[7] Respondent's Supplementary Outline of Submissions at 6.1.

[8] Although not expressed in the SOAF, the 2019 Agreement incorporated the Storage Services and Wholesale Award 2010 (referred to thereafter as the "2019 Award") which has since been varied and is now the Storage Services and Wholesale Award 2020 (referred to in its present form as the "Award").

[12] Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, [19] - [40].

[15] Note: context is to be considered as part of the first stage: SZAL v Minister for Immigration and Border Protection [2017] HCA 34; [2017] 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ.

United Workers' Union v Metcash Trading Limited T/A Metcash [2024] FWC 1706

At a glance

Court

Decision date

Source

Judgment (362 paragraphs)

United Workers' Union v Metcash Trading Limited T/A Metcash [2024] FWC 1706 (12 July 2024)

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Legislation Cited (2)