Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about any matters arising under the Woolworths Group Limited Brisbane Regional Distribution Centre Enterprise Agreement 2021 - whether the 'contested shift' constitutes a day shift or an afternoon shift.

• [1] Woolworths Group Limited (Woolworths/the Employer/the Applicant) has applied pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute about matters arising under the Woolworths Group Limited Brisbane Regional Distribution Centre Enterprise Agreement 2021 (the Agreement). The other party to the dispute is the United Workers' Union (UWU/the Union/the Respondent).

• [2] The application to deal with the dispute was made under subclause 9.1.8 of the Agreement. It was lodged on 20 February 2025. A conference was held in this matter on 10 March 2025, which did not result in an agreement between the Parties. Directions for filing of material were set and the question for arbitration was determined by consent.

• [3] A Hearing was conducted in this matter on 19 June 2025. The Applicant was represented by Mr Matthew Minucci of Counsel, instructed by Ms Amanda Wu, Ashurst Australia. The Union was represented by Ms Abbey Sultan, Industrial Officer, the Union.

• [4] The question for arbitration as agreed by the Parties is as follows:

"Is a shift rostered and worked at the Brisbane Regional Distribution Centre between 2.00pm and 6.00pm on any day (Contested Shift) a day shift or an afternoon shift for the purposes of clause 3.4.1 of the Woolworths Group Limited Brisbane Regional Distribution Centre Enterprise Agreement 2021?"

• [5] This dispute is seeking the exercise of the Commission's arbitral powers under s.739 of the Act. s.739(4) relevantly provides;

"(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so."

• [6] It was uncontentious between the parties in terms of the operations of the Brisbane Regional Distribution Centre (BRDC) as follows:

"7. The Agreement operates to the exclusion of the relevant award, the Storage Services and Wholesale Award 2020 (Award).

8. The BRDC operates practically 24/7 and the shifts worked by the majority of employees are as follows:

9. Some part-time employees or casual employees sometimes work Shift shifts commencing at 2:00pm and end at 6:00pm (the Contested Shift).

10. Permanent full-time and part-time employees generally work fixed rosters of consisting of on of the four shifts described at paragraph 8. If a worker would like to move to another shift, for example if a Night Shift worker would like to move to Afternoon Shift, the worker puts in a request form.

11. Casuals and labour hire employees do not have fixed shifts, and can be offered any of the shift types in any given week."[1] (footnotes omitted)

• [7] The Commission's jurisdiction to arbitrate is under the Agreement's dispute resolution clause as follows:

"9.1.1. A dispute is between a team member and the Company about:

b. In relation to the NES (except a dispute about whether the Company has reasonable business grounds under subsection 65(5) or 76(4) of the Act).

9.1.2. In the first instance, the matter will be discussed between the team member and the team member's line manager. At this stage or any subsequent stage, the team member has the option of enlisting the support of a representative of the team member's choice who may or may not be a Union representative.

9.1.3. If the matter is not resolved within 7 days or longer by mutual agreement, the team member and/or the representative of team member's choice may then raise the matter with the relevant Shift Operations Manager and Culture and People Partner.

9.1.4. If the matter is still not resolved within 7 days or longer by mutual agreement, the team member and/or the representative of team member's choice may then refer the matter to the BRDC Supply Chain Manager and Senior Culture and People Partner.

9.1.5. If the matter is still not resolved within 7 days or longer by mutual agreement, the team member and/or the representative of team member's choice may then refer the matter to the Queensland Supply Chain Manager and the Head of Culture and People Supply Chain.

9.1.6. If the matter has still not been resolved, either party may refer it to FWC for conciliation.

9.1.7. If the matter is not resolved by conciliation, the team member and/or their appointed representative may raise the matter with the relevant General Manager Culture and People. In instances where the team member elects to be represented by the Union, the National Secretary of the Union will represent the team member in discussions with the Company's relevant General Manager Culture and People.

9.1.8. If after clause 9.1.7, there is still no resolution and clauses 9.1.1 to 9.1.7 have been completed by either party, may ask the FWC to resolve the dispute by arbitration.

9.1.9. The decision of FWC will bind the parties, subject to either party exercising a right of appeal against the decision.

9.1.10. At any stage of this process, the team member has 7 days or longer by mutual agreement after receiving a response from the Company to progress to the next step or the dispute will be considered finalised.

9.1.11. It is a term of this agreement that while the dispute resolution procedure is being conducted work will continue as normal before the dispute arose unless a team member has a reasonable concern about an imminent risk to his or her health or safety."

• [8] The dispute between the Parties arises from the Shift clauses in the Agreement which defines the Day, Afternoon and Night. It is relevant to set out the Day and Afternoon shifts given that they are relevant to the classification of the contested shift as follows:

"1.5.15. Day shift is any shift that commences at or after 5:00am and ceases at or before 6:00pm daily. Ordinary hours for day shift may commence at or after 4:00am by mutual agreement or cease by or including 7:00pm by team member election:

A. Advertised rosters will state that mutual agreement is required for starts prior to 5:00am.

B. Mutual agreement will not be required for each shift worked, however the agreement may be revoked at any time.

C. The team member will return to their previous roster within the ordinary spread of hours within 14 days after notice of revoking the agreement.

1.5.16. Afternoon shift is any shift commencing at or after 2:00pm and ceases at or before midnight.

A. By mutual agreement, team members may commence their afternoon shift at or after 12:30pm;

B. Mutual agreement will not be required for each shift worked, however the agreement may be revoked at any time.

C. The team member will return to their previous roster within the ordinary spread of hours within 14 days after notice of revoking the agreement.

D. Day shift has precedence regarding job tasks between the hours of 12:30pm and 2:00pm."

• [9] The matter in dispute is whether the classification of the Contested Shift is an Afternoon shift, and therefore whether it may entitle employees who work the Contested Shift to a non- rotating afternoon shift work allowance (the Allowance) under clause 3.4.1:

"Non rotating afternoon shift: all team members who work ordinary working hours on afternoon shift without rotation will be paid in addition to the appropriate weekly rate an amount per hour as detailed in Appendix A."

• [10] Appendix A includes that from 1 July 2024, that the Afternoon Shift, per hour (non rotating) will have a shift work allowance of $6.28.

• [11] Clause 3.4.2 is in relation to non-rating night shifts and states:

"Non rotating night shift: all team members who work ordinary working hours on night shift without rotation will be paid in addition to the appropriate weekly rate an amount per hour as detailed in Appendix A."

• [12] In relation to rostering, clause 4.2.2 is as follows:

"All weekly team members will be rostered within the shifts prescribed in clauses 1.5.15, 1.5.16 and 1.5.17."

• [13] Clause 4.4.1 states that in regard to shift provisions that:

"Subject to mutual agreement between the Company and any individual team member, no part of this Agreement will prevent the operation of shifts commencing at varying times or at times, which vary from the majority of team members working on such a shift, whether they be on day, afternoon or night shift."

• [14] On 28 January 2025, the Union raised with the Applicant that its members working the Contested Shift falls within the definition of an Afternoon shift, those working the shift ought to be entitled to the Allowance.

• [15] On 12 February 2025, the Applicant sent a reply to the Union stating its view that as the hours of the Contested Shift falls within the span of hours for the Day shift, and the Applicant has historically treated the Contested Shift as a day shift, it did not enliven the Agreement's terms requiring payment of the Allowance.

• [16] On 13 February 2025, the Union reiterated its view that employees who ordinarily work the Contested Shift are entitled to the Allowance, noting that the shift clearly fell within the definition of Afternoon shift and also being categorised as a Day shift does not exclude the coverage of the Allowance, nor do custom and practice override clear Agreement terms. The Parties were clearly in dispute and therefore given the imminent commencement of the renegotiation of the Agreement, the Parties sought to bring the matter in an orderly way before the Commission to have the construction and interpretation of the clauses examined. As a result, following the filing of the dispute, a conference was held between the Parties before the Commission. The matter then remained unresolved and was by agreement set for Hearing.

• [17] The nominal expiry date of the current agreement is July 2025. The Parties agreed that they have commenced negotiations for the new Agreement and seek a resolution of this dispute in terms of the interpretation of whether the contested shift is a Day or Afternoon shift .The Parties submitted that the decision is requested to assist the Parties in negotiations to understand the outcome of the interpretation dispute that has arisen to assist the Parties in negotiations by being aware of the terms of the correct classification of the contested shift and the relevant payment accordingly.

• [18] The Contested Shift being the relevant shift, commences at 2 pm and concludes at 6 pm. The question being whether the Contested Shift is a Day shift or an Afternoon shift for the purposes of the Agreement.

• [19] The Employer submits that on a proper construction of the Agreement, that the Contested Shift is a Day shift within the meaning of clause 1.5.15 of the Agreement. The consequence of that construction is that employees who are rostered to work the contested shift are not entitled to receive the shift allowance in clause 3.4.1.

• [20] The Employer filed witness statements from three witnesses; two were required to appear at the Hearing.

• [21] Mr Marius Lange, Operations Manager, Temperature Control at BRDC, tendered a witness statement and Ms Jennifer Ann Barratt, the then Remediation Project Analyst (now then Senior Business Analyst, UKG Pro) tendered two witness statements: an initial and an amended reply. Both witnesses were called for cross- examination by the Union.

• [22] The Union sought to place a new document UWU-1 before Ms Barratt. This document contained a number of different scenarios of work in relation to the Contested Shift with associated remuneration calculations. After some discussion between the Parties, a consent position was proposed. It was concluded between the Parties that responses to the document would in fairness require submissions of the Parties, accordingly further directions were finalised with the final submissions being filed on Thursday, 10 July 2025.

• [23] The Parties had requested an expedited decision and therefore some of the major submissions are presented for convenience as extracts.

1. By its Form F10 dated 20 February 2025, Woolworths asks the Commission to resolve a dispute in relation to the correct classification of a particular shift being worked at Woolworths' Brisbane Regional Distribution Centre (BRDC).

2. The relevant shift commences at 2:00 pm and concludes at 6:00 pm (Contested Shift).

The question is whether the Contested Shift is a "day shift" or an "afternoon shift" for the purposes of the Woolworths Group Limited Brisbane Regional Distribution Centre

3. For the reasons canvassed in these submissions, the Commission should conclude that, on a proper construction of the Agreement, the Contested Shift is a "day shift" within the meaning of clause 1.5.15 of the Agreement. The consequence of that conclusion is that employees who are rostered to work the Contested Shift are not entitled to receive the shift allowance in clause 3.4.1.

B.1 General principles of enterprise agreement construction

4. The general principles regarding the proper construction of enterprise agreements do not appear to be meaningfully in dispute, and were recently summarised by the Full Court of the Federal Court as follows:

"[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation '... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...': Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a 'practical bent of mind' and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J)."

5. Clause 1.5.15 relevantly defines a day shift as "any shift that commences at or after 5:00am and ceases at or before 6:00pm daily".

6. Clause 1.5.16 relevantly defines an afternoon shift as "any shift commencing at or after 2:00pm and ceases at or before midnight".

7. Clause 3.4.1 of the Agreement provides that "team members who work ordinary hours on afternoon shift without rotation" are entitled to an afternoon shift allowance as set out in Appendix A of the Agreement. That is, the allowance is only payable to employees who are working the "afternoon shift" "without rotation".

8. While the words "without rotation" are not defined in the Agreement, those words appear to contemplate that the allowance is payable to a narrower class of employees, i.e., it is not payable to each and every employee who ever performs an "afternoon shift".

9. The Contested Shifts fall wholly within the "day shift" span of hours as defined in clause 1.5.15 of the Agreement. That is, it is a shift that commences at 2:00pm (which is "at or after 5:00am") and concludes at 6:00pm (which is "at or before 6:00pm"). Consequently, there is no basis for any entitlement to the "afternoon shift" allowance under clause 3.4.1 for working the Contested Shifts.

10. The concept of shiftwork is a product of history. The history of shiftwork, whilst complex, relevantly reveals that:

(a) the additional rates provided for shiftwork have historically been in recognition of the fact that a worker deserves appropriate compensation for the disabilities encountered by the fact that by very nature of the relevant industry, work was required to be performed at all times. Such disadvantages include the disturbance to domestic and social life caused by working shifts; and

(b) in general, a fixed day shift was seen as carrying no compensable disability, contrasted to an afternoon or night shift which generally carried a greater overall disability." (footnotes omitted)

• [25] In summary terms, the Applicant does not consider the shift allowance is applicable in circumstances where a fixed Day shift has no compensable disability in comparison to an Afternoon or Night shift, which generally carry a greater overall disability.

• [26] For example, as set out by the Applicant, reference was made to the industrial history relevant to shift loading as follows:

"The industrial history helpfully illuminates the purpose of the shift loading embodied in clause 3.4.1 of the Agreement. It can be seen from the industrial history that the loading in clause 3.4.1 provided to workers performing work on an "afternoon shift" under the Agreement is intended to compensate workers who are not working "dayshift", i.e., providing compensation for the domestic and social disturbances of working shiftwork. There is no inconvenience or disability in respect of a team member working a shift that falls wholly within the "day shift" span of hours as defined by clause 1.5.15. For example, those team members are not required to sleep in daylight hours or go to bed late."

• [27] The Applicant did not call any of the Respondent's witnesses for cross-examination. The Respondent called two of three Applicant witnesses for cross-examination.

• [28] Mr Lange, Operations Manager, Temperature Control at BRDC, in his role ensures that all the operational requirements are met and manages three shift operational managers (who further manage other team leaders and teams). His evidence at the Hearing was focused on the roster structure of the temperature control side of BRDC, and the use of additional hours and overtime. Mr Lange gave evidence that the Contested Shift is not a shift that is offered by him and that the Contested Shift does not operationally suit his needs.[2]

• [29] Ms Barratt, the then Remediation Project Analyst (now then Senior Business Analyst, UKG Pro), one of the primary duties of her role was to analyse and interrogate historical renumeration data to determine whether employees have been remunerated correctly. Ms Barratt, in her amended reply witness statements detailed her review of the number of times that Ms Panapa and Ms Simeon were scheduled to and worked Contested Shifts (and the number of shifts that involved working overtime). At the Hearing, Ms Barratt gave evidence in relation the payroll system and the Contested Shift; questions were asked in relation to Ms Barratt's evidence that only Ms Panapa and Ms Simeon had worked overtime after the Contested Shifts, which does not include those who worked additional hours. Scenarios from UWU-1 were put to Ms Barratt; UWU-1 became subject to submissions after the Hearing.

• [30] In relation to UWU-1, the Union submitted that this document included "scenarios where employees may be worse off working the Contest Shift with overtime, compared to being rostered and paid for the same hours as ordinary hours with the afternoon shift loading", and stated that if their interpretation was adopted then "this unfair result would be avoided". The Applicant in reply, submitted that it seems that both parties agree that, depending on the circumstances, there are scenarios whereby a member would be better off working a Contested Shift with overtime, and other scenarios where a member would be better off working a longer rostered shift. The Applicant submitted that these submissions made by the Union and the Applicant on UWU-1, while they give examples, it has "limited bearing on the ultimate construction task or the resolution of the dispute more broadly."

• [31] Mr Matthew Ryan, General Manager, Supply Chain - Queensland, was not called for cross-examination but provided a witness statement tendered in the proceedings.

• [32] Mr Ryan has worked in supply chain management and operations roles with the Applicant since his commencement with the company in 2019. Having a profile of having previously worked in similar senior roles prior to joining Woolworths. In his current role, he oversees the operations of Woolworths distribution centres across Queensland including the BRDC.

• [33] His responsibilities include strategic planning, operational management and ensuring the efficient management of supply chain activities across the State of Queensland. The BRDC is part of Woolworths Primary Connect business which is responsible for managing the transport, distribution and delivery of goods across Woolworths retail stores. The majority of the employees are covered by the Agreement, as set out above. The majority of the team members he stated perform general warehouse duties. This includes team members in the receipt area, who receive pallets from suppliers they then arrange for them to be moved to the staging area and then stored away.

• [34] Mr Ryan said that the work of team members in the deliveries area of the distribution centre perform work in terms of picking and stacking cartons onto pallets, moving the pallets to the staging area (which is an area within the centre where pallets are temporarily stored while awaiting transport), and further loading the pallets onto delivery vehicles for transportation to Woolworths retail stores.

• [35] Importantly the evidence looked at the shift arrangements at the distribution centre and stated that they have been developed to enable the distribution centre to meet the retail stores delivery windows while managing the sheer volume and scale of operations at the distribution centre in particular; the fluctuation in the volume of goods; the timing of the arrival and departure of delivery vehicles; the physical constraints of the distribution centre dispatching to approximately 350 to 400 trucks to Woolworths stores in a 24 hour span and receiving approximately 10,000 pallets into the centre in the same 24 hour period.

• [36] Mr Ryan stated that the timing of the arrival and departure of delivery vehicles is part of the 24/7 operations to meet the critical delivery windows of the Woolworths retail stores; also to be accommodated is the limited amount of equipment available as with the sheer volume and size of the goods to be sent to stores there is a certain amount of material handling equipment that can safely operate within the distribution centre at any one time.

• [37] Mr. Ryan set out the three types of shifts being Day, Afternoon and Night shift, but the majority of shifts worked at the centre are one of the following shifts: commencing at 5:00am and ending around 1:00 or 1:30pm (a standard day shift), shift commencing at 2:00pm and ending at 10:00pm (the afternoon shift), and shifts commencing at 10:00pm and ending at 6:00am (the night shift).

• [38] However, in addition he set out that some team members work a shift commencing at 2:00pm and ending at 6:00pm, this importantly being the Contested Shift. He stated that those those shifts that were set out in terms of the timing above are structured to avoid overlaps in shifts given the sheer volume and scale of operations and the need to operate all equipment at any given time safely his evidence was that the transition period between shifts is carefully managed to ensure the safe use and efficiency of machinery as well as to maintain a continuous flow of goods through the distribution centre. He set out that the standard day shift is structured to enable the centre to prepare and dispatch goods for the early morning dispatches and goods arriving at the centre.

• [39] The Contested Shift and afternoon shift are structured to enable the centre to achieve a continuous flow of goods and meet delivery windows later in the day. The later delivery windows are necessary for Woolworths retail stores to replenish the stock for the next trading day. Mr Ryan stated that when he commenced his first role in 2019 at the centre, the Contested Shift was already in place. He stated that whilst it was not one of the main types of shifts worked at the centre over the years, the Contested Shift had become a well established shift type of the centre. His evidence was that the Contested Shift was developed to address the operational needs of the centre to facilitate the engagement of part-time team members. This particular shift, the Contested Shift, enables the centre to achieve a smooth and continuous profile of pallets; picked, stacked and dispatched onto trucks throughout the evening and into the early hours of the morning. The Contested Shift is intended, he stated, to be family friendly because it allows employees to balance work with personal commitments such as school drop offs or pickups while ensuring that they are able to arrive home at a reasonable hour. The Contested Shift is typically staffed by a mix of directly engaged casual employees, part-time employees and agency labour hire. The flexible workforce allows the centre to adjust workforce levels in response to fluctuating operational needs and demands and forecasted volume of orders.

• [40] The Applicant, Woolworths, set out in their application to the Commission that:

"1. The dispute concerns the correct classification of shifts at the Brisbane Regional Distribution Centre (BRDC) that commence at 2:00 pm and conclude at 6:00 pm (Contested Shifts). The question is whether these Contested Shifts are either a "day shift" or an "afternoon shift" under the Brisbane Regional Distribution Centre Enterprise Agreement 2021 (Agreement).

2. Woolworths Group (Woolworths) considers that the Contested Shifts are correctly classified as "day shifts" and therefore do not attract the afternoon shift allowance.

3. Clause 1.5.15 relevantly defines a day shift as "any shift that commences at or after 5:00am and ceases at or before 6:00pm daily". There are circumstances in which a day shift may cease at or before 7.00pm. Those provisions are not relevant to this dispute.

4. A Contested Shift meets the Day Shift definition because it commences at 2:00pm (which is "at or after 5:00am") and concludes at 6:00pm (which is "at or before 6:00pm").

5. There is an overlap in the span of hours for day shift and afternoon shift, such that a Contested Shift also falls within the shift span of an "afternoon shift" as set out in clause 1.5.16 (which relevantly refers to "any shift commencing at or after 2:00pm and ceases at or before midnight").

6. For the following reasons, Woolworths contends that on the proper construction of the Agreement, the Contested Shifts are day shifts as defined in clause 1.5.15, which do not attract the afternoon shift allowance under clause 3.4.1:

a. Shift penalties or allowances have a long standing and accepted industrial meaning. They describe additional payments made to employees to compensate them for the disruption and inconvenience to their domestic and social lives as a result of working shifts with unsociable and non-family friendly hours (see, for example, Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd T/A Appin Mine [2017] FWCFB 4487 at [64]).

b. Objectively, there is no inconvenience or disability to a team member as a result of working a shift that falls wholly within the day shift span of hours. For example, team members are not required to sleep in daylight hours, or go to bed late, as a result of working a shift that falls within the day shift span of hours.

c. As the Contested Shifts fall wholly within the day shift span of hours as defined in clause 1.5.15 of the Agreement, there is no basis for any entitlement to the afternoon shift allowance under clause 3.4.1 of the Agreement for working the Contested Shifts. It is only shifts with hours that fall outside the day shift span of hours that can be said to be attended with the social and

domestic inconveniences for which the afternoon and night shift allowances seek to compensate.

7. The definitions of "day shift" and "afternoon shift", insofar as they would apply to Contested Shifts, have not materially changed since at least 2008 (although the definitions have changed over time to permit team members to start earlier or cease later, generally by mutual agreement or team member election). They have existed in each of the following predecessor agreements:

a. clauses 1.5.14 and 1.5.15 of the Woolworths Limited Brisbane Regional Distribution Centre Collective Agreement 2008;

b. clauses 1.4.14 and 1.4.15 of the Woolworths Limited Brisbane Regional Distribution Centre Enterprise Agreement 2011;

c. clauses 1.4.14 and 1.4.15 of the Woolworths Limited Brisbane Regional Distribution Centre Enterprise Agreement 2014; and

d. clauses 1.4.15 and 1.4.16 of the Woolworths Group Limited Brisbane Regional Distribution Centre Enterprise Agreement 2018.

8. Contested Shifts have always been treated and paid as day shifts across successive enterprise agreements." (footnotes omitted)

• [41] The Respondent, the Union, set out in their reply that:

"1. The Respondent seeks confirmation of its view that an afternoon shift which "starts at or after 2:00pm" and finishes "at or before midnight" is still an afternoon shift when it starts at 2:00pm and finishes at 6:00pm.

2. Clause 1.5.15 of the Woolworths Group Limited Brisbane Regional Distribution Centre Enterprise Agreement 2021 (the Agreement) defines a Day shift which "commences at or after 5:00am" and ceases "at or before 6:00pm".

3. Clause 1.5.16 of the Agreement defines an Afternoon shift as "any shift commencing at or after 2:00pm and ceases at or before midnight".

4. Clause 1.5.16(a) also provides that where employees have an earlier start time of 12:30pm by mutual agreement, this is also an "afternoon shift".

5. Appendix A provides for an Afternoon Shift Allowance (the Allowance).

6. The Applicant contends that where an afternoon shift commences "at or after 2:00pm" but ceases at 6:00pm, this means it is a day shift due to the overlap of hours.

7. The Respondent disagrees as the shifts are clearly defined by their start times. The

finishing times of the shifts are of less moment in determining whether a shift is classified as a "day" or "afternoon" shift.

8. The Respondent has several members who work from 2:00pm and finish at 6:00pm.

9. Those members have letters of offer from the Applicant clearly stipulating that they are employed to work on the "A/Noon Shift" (Annexure A).

10. A clear and unambiguous reading of the clauses indicates that anyone who starts "at or after 2:00pm" and finishes work "at or before midnight" is on an afternoon shift where they start at or after 2:00pm (or as provided by 1.5.16(a)), and are therefore entitled to the Allowance.

11. Finishing work at 6:00pm is still "at or before midnight".

12. Based on the wording of the Afternoon Shift, employees working at or after 2:00pm (or as provided by 1.5.16(a)) and finishing at or before midnight, are entitled to the Allowance.

13. There is no requirement in the Agreement that an afternoon shift must extend past 6pm to qualify for the Allowance.

14. There is also no requirement that an Afternoon Shift that fits within the Day Shift

15. It is clear in the wording of clause 1.5.16 that "Day Shift" is entirely separate from the afternoon shift, as Day shift has precedence regarding job tasks between the hours of 12:30pm - 2:00pm, indicating that the Afternoon Shift is clearly delineated as starting "at or after 2:00pm" or as provided by paragraph 1.5.16(a)."

• [42] Evidence was provided by Ms Lesley Panapa and Ms Jolene Simeon. Ms Panapa and Ms Simeon were not called for cross-examination by the Applicant, but both provided a witness statement tendered in the proceedings. These two members of the Union perform all their shifts on the afternoon shift with Ms Simeon's contract of employment specifically identifying her as an afternoon shift worker. The Union states that this particularisation reinforces the characterisation of the 2pm shift as part of the afternoon shift pattern at the site.

• [43] In contrast, Ms Panapa works part-time and finishes her shift on Thursdays at 6pm and does not receive the afternoon shift allowance for that one shift. The Union states that their members full-time colleagues that continue to work past 6 pm are paid an afternoon shift loading for the hours between 2 pm to 6 pm, however their member Ms Panapa is not. Their concern is that adopting the Woolworths approach would result in iniquities.

• [44] The Employer sets out that a shift allowance is not payable where there is no inconvenience or disability in respect of a shift that falls wholly within the dayshift span of hours.

Summary of Submissions on Construction of the Provisions

• [45] The UWU in their submissions set out that they do not deny that the Contested Shift may also meet the definition of a Day shift, however that excludes an argument as to whether a shift is a Day shift in regard to whether an allowance is payable under clause 3.4.1. The Union's preferred argument is that the entitlement to the Afternoon shift allowance turns solely on whether the shift meets the definition of an Afternoon shift and has worked without rotation.

• [46] The Union's argument is that the Agreement specifies the hours during which an Afternoon shift loading is payable, is clear and unambiguous language which supports the UWU's interpretation. Whilst they concede that Woolworths' assertion that working between 2pm and 6pm does not cause a social disadvantage, may have application in a policy or bargaining context. This is not the nature of the dispute about what hours should attract a loading, but about the proper construction of the terms of the agreement.

• [47] It is agreed between the Parties that the interpretation of an enterprise agreement begins with the ordinary meaning of the words having regard to the agreement as a whole and the legislation and industrial context in which it operates.[3]

• [48] The Union emphasised that the Agreement does not provide a daily or weekly span of ordinary hours in the hours of work at clause 4.1, rather the scope of ordinary hours can be found in the rostering provisions a clause 4.2. Those provisions generally provide that the ordinary hours can be rostered 24 hours, seven days a week, as per clause 4.2.5. Again, the Union draws attention to the fact that there is no daily span of ordinary hours. However, clause 4.2.2 of the Agreement permits that employees will be rostered within one of the shifts set out in clause 1.5.15, 1.5.16, and 1.5.17. These have been recorded earlier, but they allow for a Day shift that commences after 5am and ceases before 6pm. Daily reference is made to the ordinary hours for the Day shift commencing at or after 4am by mutual agreement and ceasing by 7pm.

• [49] Again, in summary terms, clause 1.5.16 allows for the Afternoon shift to be any shift commencing at or after 2pm and finishing at before midnight. This is together with clause 1.5.17 which sets the Night shift commencing at or after 10pm and ceasing before 7:30am.

• [50] Predominantly the Union argues that although the contested shift falls within the span of a Day shift, this overlap does not provide a disqualification from being classified as an Afternoon shift, which attracts the Afternoon shift allowance. It is important to note that the Agreement does not provide a daily or weekly span of ordinary hours in the hours of work provisions. However, the typical hours, as emphasised by the Applicant, can be located in the roster and provisions at clause 4.2. That clause sets out that on hours can be rostered 24 hours, seven days a week. Whilst the Agreement has no daily span of hours, clause 4.2.2 provides that employees will be rostered within one of the shifts set out already above, including clauses 1.5.15, 1.5.16 and 1.5.17. In accordance with what can be called the three shifts span of hours, which mirror the designation of the start and finish times as worked by employees at the distribution centre.

• [51] The Union submit that the Agreement does not contain any provision that prevents a shift from being both a Day shift and an Afternoon shift. The Union qualifies this by specifying that the payment of the Afternoon shift allowance is only contingent on whether or not the shift is an Afternoon shift. The Union argues that an afternoon shift is defined as any shift that begins at or after 2pm and finishes at or before midnight. Their argument specifies that the use of the word 'Any shift' includes 1.5.16. They suggest this makes clear that any shift is considered an Afternoon shift as long as it falls within that timeframe, irrespective of any overlap with the Day shift span or other considerations.

• [52] The Union's plain reading of the clause opposes the construction made by Woolworths. They set out that Woolworths' contention that a shift falling within the time span of a Day shift must be classified as such and is therefore not subject to penalty rates on their plain reading of the Agreement, whether a shift meets the definition of a Day shift has no bearing on employees entitlement to shift penalties. In support of that argument, the Union sets out that there is no clause in the Agreement that expressly provides that employees working a Day shift are not entitled to penalties. They further argue that clause 3.4.1 does not exclude Afternoon shifts that also occur within the Day shift span from attracting the Afternoon shift allowance.

• [53] In addition, the argument advanced by the Union is that to adopt the Employer's interpretation would mean that the words in the Agreement in relation to the afternoon shift commencing at or after 2pm would have no work to do, the Applicant's argument makes these words redundant with no practical effect. The Union recognises that the Woolworths construction, provides that Afternoon shift loading is only payable for shifts that finish after 6pm and before midnight regardless of the start of the shift. the Union strongly contend that the words 'commencing at or after 2 pm' are sensibly afforded work in the construction of the provision and should be given their ordinary and natural meaning. They contend a construction whereby any shift which commences at after 2pm and ceases at before midnight is an afternoon shift and attracts the applicable loading if they set out shifts such as the Contested Shift, commencing at or after 2pm and finishing before 6pm excluded from the Afternoon shift definition, then the shifts commencing at after 2 pm become superfluous or meaningless in their submission.

• [54] The Union in their arguments drew attention to the alignment of the argument or the description of the definition of the Afternoon shift that the Applicant is seeking to effectively mirror the definition of Afternoon shift in the relevant award which defines an Afternoon shift as a shift finishing after 6 pm and at or before midnight. However the Union highlights of the Agreement use different language, which they suggest indicate a deliberate choice to create a broad entitlement.

• [55] Further, the Union stated that when the definitions of the Day shift and Afternoon shift are read together, they suggest a clear demarcation that is a Day shift commences at or after 5am and before 2pm and finishes by 6pm. The inclusion of a 2pm start time for the Afternoon shift serves to mark the boundary between day and afternoon shift, reinforcing the intended significance of that time.

• [56] The industrial context at the distribution Centre is presented by the Union as a standard day shift starts at 5am and finishes at 1:30pm in comparison to the Contested Shift beginning at 2pm, which is highlighted to be the same time as the standard afternoon shift. The contrast is drawn that the shift start time is nine hours after the standard dayshift start time of 5am, showing that the contested shift aligns more closely with the afternoon shift.

• [57] The Agreement operates to the exclusion of the relevant award, the Storage Services and Wholesale Award 2020.

• [58] The submissions in this matter looked at the correct classification of the Contested Shift, which commences at 2pm and concludes at 6pm.

• [59] Clause 1.5.15 of the Agreement defines a Day shift commencing at 5am and ceasing at or before 6 pm daily (with additional hours by mutual agreement or team member election). In contrast, the Afternoon shift is any shift commencing at or after 2pm that ceases at or before midnight. In terms of shiftwork allowances in accordance with 3.4.1, team members working a non-rotating Afternoon shift, who work ordinary working hours on an Afternoon shift without rotation, will be paid, in addition to the appropriate weekly rate, an amount per hour as detailed at Appendix A.

• [60] On the ordinary words of clause 3.4.1 of the Agreement, that provision provides the team members who work ordinary hours on Afternoon shift without rotation are entitled to an Afternoon shift allowance. The payment of allowance needs to meet the test of that clause, that it is an Afternoon shift importantly worked without rotation. Whilst those words without rotation are not defined, the words clearly indicate the payment is only associated with the employees that meet the tests of those categories; that is working Afternoon shift and without rotation. In the current circumstances, the Contested Shift hours fall within the Day shift span of hours, these being set up clearly at clause 1.5.15. For clarity, again the Day shift span of hours commencing at or after 5 am and ceasing at all before 6pm, the subset of hours of the Contested Shift commencing at 2pm and concluding at 6pm fall within the span of hours for the Day shift.

• [61] In this matter, both parties were in agreement that the construction of the Agreement took into account, the general principles of Enterprise Agreement construction set out above and there is no particular dispute regarding the approach to construction between the parties. Accordingly, the approaches of the parties returned to the starting point for interpretation of an Enterprise Agreement being the ordinary meaning of the words.

• [62] The question before the Commission is the correct classification of the Contested Shift. The submissions on the interpretation and proper construction of the Agreement provisions considered both interpretations and there relies on history and purpose of shift loading and the historical development of shift penalties.

• [63] In terms of the interpretation, it is also relevant to look at the intention of the parties and the manner of the usage of the provision.

• [64] The purposive approach to interpreting industrial agreements, whilst accepted it should acknowledge the plain and ordinary meaning of the words used. In that regard, the Union strongly argues that the Agreement specifies the hours during which and afternoon shift loading is payable in clear and unambiguous language.[4]

• [65] The interpretation sought by the Union places emphasis on what attracts penalties on the plain and ordinary meaning of the words in the Agreement as per the approach in Kucks v CSR Ltd (per Madgwick J):[5]

"It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning."

• [66] Whilst the Contested Shift hours fall within the defined Afternoon shift hours to be entitled to the additional hourly allowance, any employee must also meet the test of working the ordinary hours on the afternoon shift without rotation.

• [67] The evidence in relation to the construction and interpretation of the Contested Shift considered the usage of this Contested Shift by the Employer at the BRDC and the nature of those employees working this Contested Shift.

• [68] It is clear from the evidence that there is an ever-increasing pressure on distribution centres to most efficiently meet and dispatch the goods to comply with the changing demands of retail stores and to be able to fill those orders within critical times and do so within the delivery windows available at the supermarket stores. The Contested Shift has been utilised to provide the flexibility as an important additional shift that also gives a flexible working time to the employees that work on that shift as set out.

• [69] There is no persuasive argument against the construction, interpretation or usage of the Contested Shift as it is currently interpreted, whereby there is any industrial impediment not to continue to be able to utilise the contested shift in terms of the clear wording of the provision of the Agreement.

• [70] The contested shift provides a further period of legitimate work during the daily span of hours that provides further utilisation of the Distribution Centre but also in terms of the hours of the contested shift provide hours for a flexible workforce that find these as provide flexibility and balance of lifestyle commitments. The distribution centre has come to rely on the existing shift in the manner that it allows for much required flexibility in meeting store demands for goods. Whilst on the evidence of the Employer at the distribution centre, it has found utilisation of the Contested Shift whereby is it has reasonably been able to rely on this shift, in addition to the standard shifts as providing an additional set of hours (acceptable to a segment of the workforce looking for suitable hours that meets their requirements) and provides much needed flexibility for the increasing need for meeting fluctuating demands on the distribution centre to meet the supply of goods to stores.

• [71] There is no evidence that the continuing interpretation of this shift impacts the day, afternoon or night shifts given the smaller span of hours of the contested shift. It is a shift by the nature of its confined number of hours, and its placement that is acceptable to a smaller segment of the workforce but again meets their needs of working out for that number of hours. There is also no known or argued associated disability with the shorter span of hours of the contested shift during the day that would justify or require the payment of an allowance to compensate for some associated disability of the hours or prejudice caused to employees working these hours. On the wording of the Agreement and the arguments as presented in this matter, the Contested Shift does not invoke the payment of the Afternoon shift allowance. This is also an interpretation that is open on the current words of the Agreement in terms of the payment of the allowance associated with the Afternoon shift. The allowance, on the requirement sought by the Respondent for the payment of the Afternoon shift, that allowance that is paid with the Afternoon shift length of hours, the associated hours and timing of that shift of work are not found in the same way in terms of the working hours of the Contested Shift or the separate placement of those hours in the span of ordinary hours, to give rise to the justification of the payment of a disability allowance.

• [72] It is acknowledged by both parties that the Contested Shift falls within the span of a Day shift but has overlap on the hours to the Afternoon shift. It is incongruent with the classification and presentation of the shifts to allow for the shift to be both a Day and Afternoon shift. However even if this is accepted on the Union's argument, the working of the Contested Shift does not automatically allow for it to be an Afternoon shift that attracts the payment of the allowance.

• [73] The more industrially correct approach is that the contested shift hours wholly fall within the Day shift span of hours as are set out in the agreement at 1.5.15.

• [74] For clarity, the Contested Shift commences after 2pm, that being after the 5am commencement of the Day shift and concludes at 6pm, which is a finalisation of that Contested Shift before the conclusion of the Day shift before 6pm. Accordingly, no entitlement as set out in 3.4.1 in relation to the Afternoon shift allowance arises from working the Contested Shift.

• [75] In examining the entitlement to an Afternoon shift allowance, both parties referred to the relatively complex history of shiftwork. I adopt the reasoning provided by the Applicant that the Afternoon non-rotating shift allowance is not payable for work on the Contested Shift hours given that, in relation to the assignment of an Afternoon shift allowance, such an allowance historically is connected with work required to be performed at times that provide disadvantages or disturbances to domestic and social life due to the working of such shifts.[6] The evidence in the current matter did not present such a recognised disability associated with the hours of the contested shift in contrast to compensable disability associated with the Afternoon or Night shift. On the facts of the matter, and the evidence presented, no demonstrated inconvenience or disability with regard to team members that were working the contested shift being hours that fell within the dayshift span of hours was demonstrated. That is these hours do not provide the disruption or disturbance to an individual's daily pattern associated with Afternoon or Night shift hours. As set out, the Applicant's team members working a Contested Shift are not required to sleep in daylight hours or go to bed late. Those disturbances are associated with Afternoon and Night shifts where the allowance is provided to compensate for such and can be justifiably argued. In the current case of the Contested Shift hours such an associated disability cannot be argued to justify the payment of the allowance.

• [76] Taking into account the construction of the Agreement clauses and the ordinary and plain meaning of the words of the relevant Provisions, the Contested Shift as submitted by the Applicant falls within the meaning of clause 1.5.15 of the Agreement and can therefore clearly be classified as a Day shift. Therefore, within the terms of the shift work allowance under the Agreement, for the non-rotating Afternoon shift allowance, that allowance is not payable in line with the purposes of clause 3.4.1. for the Contested Shift hours. These hours do not meet the non-rotating Afternoon shift and fall within the Day shift hours of work.

• [77] The argument of the Applicant is accepted in relation to the Respondent's intent that the Agreement permits a shift to be classified as both the Day shift and an Afternoon shift. It is accepted that to do so is inconsistent with the different shift allowances set out in clauses 3.4.1 and 3.4.2, relevant to an employee performing Afternoon or Night shift work. The submission is accepted that two different shift rates apply to those two different shifts afternoon and night and therefore require separate treatment. To do otherwise would be allowing for an employee to be working various configurations of shifts at the same time subject to different shift allowances. Further it is agreed that that construction blurs the distinction between Day, Afternoon and Night shift; a distinction that is drawn by clause 4.2.2 which sets each kind of shift out for distinctive treatment.

• [78] It also is recognised the clause 4.4.1 allows for shifts to commence at varying times. Some credit also must be afforded to the argument as presented by the Applicants in terms of the sequential ordering of the definitions of the shift as they appear in the Agreement with the Day shift being defined first, followed by the Afternoon shift etc. This aligns with a logical argument that the definitions as separately and distinctively presented in the Agreement. I have also attributed weight to the submissions made at paragraph six to seven, of the reply submissions of the Applicant as follows:

"6. As Priestly JA observed in Patman v Fletcher's Fotographics Pty Ltd (albeit, by reference to the statutory provision in question in that case):

"I see no reason why the Act should not be read in the ordinary way in which a document is read, that is, from the beginning onwards. In the ordinary course of reading, s 4, although of course it must be read with both what precedes it and follows it, must be read after s 3 and further, in the ordinary course it seems to me that it must be read in the light of s 3. It is preposterous, in the literal sense, to read s 4, make assumptions concerning its purpose based on its language, without reference to what has preceded it and then to read s 3 in the light of the purpose thus discerned in s 4. A much sounder way of reaching what the draftsman's purpose was is to read his Act in the sequence in which he wrote it."

7. Contrary to UWU Submissions at [19] - [25], simply giving the words 'commencing at or after 2:00 pm work to do' does not resolve the construction question. Each of the shift definitions in clauses 1.5.15 - 1.5.17 of the Agreement use the identical language, i.e., 'commences at or after' and 'ceases at or before'. The UWU's Submissions implicitly ask the Commission to ignore the words 'ceases at or before'. Woolworths has not ignored either of these expressions in its analysis, rather it is simply the case that these qualifying expressions do not resolve the tension the subject of the dispute one way or the other." (footnotes omitted)

• [79] The manner of presentation of the parameters of the shifts, as per the wording in the Agreement, clearly has work to do and has to be taken into consideration as part of the the assessment for the classification of the Contested Shift as set out.

• [80] For the aforementioned reasons in response to the agreed question; the Contested Shift at the Brisbane Regional Distribution Centre that commences at 2pm and concludes at 6pm is correctly classified as a Day shift for the purposes of clause 3.4.1 of the Agreement. Therefore, the Contested Shift does not attract the Afternoon shift allowance.

[1] Respondent's Outline of Submissions.

[3] Australian Workers' Union v Orica Australia Pty Ltd [2022] FWCFB 90 at [18] and the authorities referred to therein; James Cook University v Ridd [2020] FCAFC 123 at [65] and the authorities referred to therein; Workpac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197].

[4] Respondent's Outline of Submissions [52].

[6] Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd T/A Appin Mine [2017] FWCFB 4487 at [64]; Re: Metal Trades Award 1969 AILR Rep 426; 24 IIB 1745 at 243: "It would seem that shift work was originally permitted for continuous processes and a rate fixed as an appropriate compensation for the disabilities encountered in the knowledge that the very nature of the industry required work to be performed at those times" and Shift Workers Case 1972 AILR Rep 200 (Shiftworkers Case) at [647]-[651], including "Overall, however, we are satisfied that shift work has disabilities which require special remuneration" at [648], "the disturbance to domestic and social life is overall very real and calls for adequate compensation" at [649] and at [649] - [650] "But in general we would say that a fixed day shift carries no compensable disability except where it is worked during the weekends and on public holidays where separate appropriate remuneration should be provided. As between a fixed afternoon and night shift, generally a night shift carries the greater overall disability."

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