[2016] FWC 6350
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Mrs Penelope Vickers
(AG2016/3797)

COMMISSIONER SPENCER

BRISBANE, 14 OCTOBER 2016

Application for termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 – Threshold Issue – Does Applicant meet criteria for shiftworker under the Award – Relevant to comparison between Agreement and Award for substantive matter – consideration of ordinary hours under clause 27.2(b)(iii) and whether Coles is a “retailer” or clause is applied on store by store basis

Introduction

[1] This Decision relates to an application made by Mrs Penelope Vickers (the Applicant) pursuant to section 225 of the Fair Work Act 2009 (the Act). The application sought the termination of an enterprise agreement, the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 1 (the 2011 Agreement), after its nominal expiry date.

[2] The Applicant sought the termination of the 2011 Agreement on the basis that, if the 2011 Agreement was terminated, the General Retail Industry Award 2010 2 (the Award/GRIA) would be the applicable industrial instrument setting out her remuneration and entitlements. The Applicant stated, in relation to her particular roster, that she would receive a greater total amount of remuneration for the rostered work under the Award.

[3] Relevant to this application, a Full Bench, in the Decision of Duncan Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo; Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo 3 (Hart v Coles) found that the Coles Store Team Enterprise Agreement 2014-2017 (the 2014 Agreement) did not pass the Better off Overall Test. On 17 June 2016, the Full Bench issued an Order quashing the Decision to approve the 2014 Agreement4. The Order quashing the approval of the 2014 Agreement took effect from 5 July 2016.

[4] The Applicant (in the current proceedings) commenced employment with Coles Supermarkets Australia Pty Ltd on 7 September 2012 on a part-time basis. The Applicant’s contract stated she will be rostered to work 48 hours over a 4 week cycle (an average of 12 hours per week) and that her rate of pay and employment conditions were as set out in the 2011 Agreement. The Applicant is currently employed to work 3 shifts per week totalling 12 hours, but the Applicant stated that she is regularly rostered to work additional shifts, and that these additional shifts are paid at casual rates. The Applicant also stated she is requested on occasion to work additional hours, involving coming in to work earlier or staying back late, after the finish of her rostered shift.

[5] The matter was initially brought on for Mention, and a range of interested parties sought to be heard, including Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd (Coles), the Shop, Distributive and Allied Employees Association – Federal Branch (SDA), the Australian Workers’ Union – Queensland Branch (AWU) and the Australasian Meat Industry Employees Union Federal and Queensland Branches (AMIEU – Federal Branch and AMIEU – Queensland Branch) (collectively, the Respondents).

[6] The following threshold issues were identified by some of the Respondent parties, which were relevant to the initial consideration of the application. These issues included that the Applicant has based her calculations that she was better off overall under the Award than the 2011 Agreement, on an assumption that she is performing work as a shiftworker and that she was employed as a shiftworker under the Award. The Applicant had provided associated calculations in support of her application for the termination of the 2011 Agreement, on this basis.

[7] Directions were set for the provision of submissions in relation to the threshold matters, in terms of whether the Applicant was employed as a shiftworker and working as such under the Award and her associated calculations comparing the relevant Award and the 2011 Agreement provisions on this basis. The consideration of the Applicant’s assumption regarding her status as a shiftworker under the Award and associated calculations will assist in the determination of a common comparator, for the provision of evidence in the substantive matter.

[8] The Applicant, Coles, the SDA, the AWU and the AMIEU - Federal Branch filed submissions in relation to whether the Applicant was a shiftworker as set out in Clause 30 of the Award. Coles filed evidence in support of their submissions in the form of two witness statements. These were re-filed in Affidavit format prior to the hearing. The AMIEU – Queensland Branch adopted the submissions of the AMIEU Federal Branch.

[9] The matter was heard in Brisbane on 5 October 2016. The Applicant was self-represented and appeared with Mr Allen Truslove. Coles was represented by Mr Stuart Wood QC, assisted by Mr Nico Burmeister, Counsel, and instructed by Ms Georgia Simmonds of Seyfarth Shaw. The SDA was represented by Mr Anthony Harding, Counsel, instructed by Mr Chris Mossman of Macpherson Kelley Lawyers. Permission for legal representation had been granted in an earlier Decision 5. The AWU was represented by Mr Jack Harding, Industrial Advocate of the AWU. The AMIEU Federal and Queensland Branches were represented by Mr Craig Buckley, Industrial Officer of the AMIEU Queensland Branch.

[10] It is noted that whilst not all of the evidence and submissions in this matter are referred to, all of such have been considered in making this Decision.

Relevant Legislative provisions

[11] The substantive application has been made under s.225 of the Act. The circumstances in which the Commission must terminate an enterprise agreement are set out in s.226 of the Act. The legislative matters to be considered on the merits of the application relate to issues relevant to the Applicant’s work, and to the whole workforce covered by the Agreement. These provisions are extracted as follows:

225 Application for termination of an enterprise agreement after its nominal expiry date

226 When the FWC must terminate an enterprise agreement

[12] Whether the Applicant meets the criteria of a shiftworker under the Award will affect the comparison of rates between the Award and 2011 Agreement. The circumstances of the Applicant, and the employees, each employer and employee organisation covered by the Agreement, and the likely effect that the termination of the Agreement will have on each of them, must be considered under s.226(b)(ii) of the Act, in addition to their views in respect of the termination under s.226(b)(i).

[13] The shiftwork definition raises an issue as to the ordinary hours of work. The Applicant therefore also relied on the National Employment Standards (NES) provisions in the Act relating to Annual Leave and Personal/Carer’s Leave in relation to a consideration of ‘ordinary hours’. The provisions referred to are extracted as follows:

87 Entitlement to annual leave

96 Entitlement to paid personal/carer’s leave

Relevant 2011 Agreement provisions

[14] The Applicant submitted that she would be better off overall under the Award, than under the 2011 Agreement and therefore the 2011 Agreement should be terminated. That substantive matter will be determined against the tests in s.226 also taking into account the public interest test. The threshold issue for determination in this preliminary Decision relates to the circumstances of the Applicant in order that the likely effect that termination of the 2011 Agreement would have can be considered on common grounds between the parties. For the purposes of the consideration of a common comparator between the Award and the 2011 Agreement (in order to assess the Applicant’s circumstances) the threshold issue is whether the Applicant would be classified as a shiftworker under the Award and be paid as such in the event the 2011 Agreement is terminated. There is no definition of shiftworker, or rates specified for working shiftwork in the 2011 Agreement. The 2011 Agreement provides for ordinary hours and penalty rates as follows:

5.1 ORDINARY HOURS OF WORK AND ADDITIONAL PENALTIES FOR ORDINARY HOURS - PERMANENT TEAM MEMBERS

[15] The 2011 Agreement provides the following definitions:

1.3 DEFINITIONS

[16] The Agreement does not incorporate the Award:

Relevant Award provisions

[17] Clause 10 sets out the employment categories under the Award as follows:

10. Employment categories

[18] Clause 27 of the Award sets out the ordinary hours of work below. The parties differ on the application of clause 27.2(b)(iii) which extends the finishing time for ordinary hours. Coles submitted the clause is applied on the basis of it operating as a national retailer and the applicable trading hours should be considered on that basis. The Applicant considered that the trading hours of each store should be adopted in the consideration of each employee, and in her current circumstances, it is the Coles Mt Ommaney store. It should be noted that trading hours across the national a set by a variety of legislative instruments. In Queensland, the Queensland Industrial Relations Commission sets trading hours.

27. Hours of work

[19] Clause 29.2 of the Award, relating to overtime, was also referred to, in the comparison of wages:

[20] Clause 30.2 of the Award contains the definition and rates of pay for shiftwork:

Background

[21] As previously stated, on 17 June 2016, the Full Bench in Duncan Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo; Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo 6 (Hart v Coles) issued an Order quashing the Decision to approve the 2014 Agreement, with effect from 5 July 2016.

[22] The Decision of the Full Bench in Hart v Coles  7 is extracted as follows:

[23] Therefore, the 2011 Agreement was re-enlivened on 5 July 2016. This 2011 Agreement had reached its normal expiry date on 31 May 2014.

[24] In similar terms to the Applicant in the 2014 Agreement proceedings, Mrs Vickers, in the current proceedings, considered her overall remuneration and entitlements would be better off overall under the Award than the 2011 Agreement. Primarily, she argued that her appropriate classification was as a shiftworker under the Award and that the rates under the Award were more advantageous for her rostered hours than under the 2011 Agreement.

[25] In order that the comparisons between the 2011 Agreement and the Award are undertaken on a common basis, it was considered an appropriate course to initially determine the threshold issue of whether the Applicant met the criteria of a shiftworker under the Award, as she set out her case and the associated calculations on this basis. It is important to clarify the fundamental issues that will underpin the wage calculations relevant to the hours of work and any matters affecting the views of the Applicant and other employees, to be considered in the substantive hearing.

[26] The wage calculations and comparisons are relevant pursuant to s.226(b)(i) and (ii), in particular, for the parties to provide the views and circumstances of the employees covered by the Agreement. Coles have stated that they have a national workforce of 74,000 employees 8 (across 784 stores9) to whom the Agreement applies.

[27] Accordantly, in bringing the views and circumstances of those employees and the range of applicable calculations of a comparison between the 2011 Agreement and the Award (as evidence of those employees’ circumstances and the likely effect of termination), it is necessary that there be a commonly agreed understanding of the basis firstly for the Applicant’s calculations. This is particularly important as in considering the termination of the Agreement, the Commission must take into account the views and circumstances of the employees, each employer, and each employee organisation covered by the agreement relevant to this application as well as whether it is not contrary to the public interest to terminate the Agreement pursuant to s.226. The Respondent parties have foreshadowed that this will be a significant exercise to bring this relevant information and evidence before the Commission. In addition, the Respondent parties have also indicated that the outcome of the determination of the 4 yearly review of modern awards—Penalty rates case currently before a Full Bench of the Commission (matter AM2014/305), will also be an additional matter, that will have to be factored in to the comparative calculations between the 2011 Agreement and the Award.

Summary of the Applicant’s submissions on the threshold issue

[28] The Applicant filed submissions, an Affidavit with annexures and calculations for the Applicant’s roster, based on both shiftworker and non-shiftworker status, comparing her positions under the 2011 Agreement and the Award, and submissions and an Affidavit in reply. The Applicant filed 22 annexures to her Affidavit, amounting to almost 500 pages. At the hearing the Applicant referred to the relevance of each of the annexures. None of the parties sought to cross-examine the Applicant.

[29] The Applicant submitted that whether or not she is a ‘shiftworker’ for the purposes of the Award, she would still receive less income (including after consideration of all leave, superannuation, and other entitlements) under the 2011 Agreement, than she would if employed under the Award.

Shiftwork under the 2011 Agreement

[30] It is common ground between the parties that there is no provision in either the 2011 or 2014 Agreement referring to the employment of ‘shiftworkers’. The Applicant argued that she was not prevented from meeting the definition of ‘shiftworker’ under the Award, for the purpose of the wages comparison, even though the term ‘shiftworker’ is not defined under the 2011 Agreement.

Trading hours and the Applicant’s roster

[31] The Applicant works at the Coles Mt Ommaney store, in Queensland. The Applicant submitted that the Mt Ommaney store’s span of trading hours were within the definition of ordinary hours defined in clause 27.2(a) of the Award (extracted above). The Mt Ommaney store’s regular trading hours were provided as follows:

[32] The Applicant noted that Coles’ store opening times varied from store to store, with some stores trading during the Award ordinary hours (in clause 27.2(a)), and others for much longer trading hours. The Applicant provided a print-out of Coles Store “Locations & Hours” as Annexure PAV-18 to her Affidavit 10.

[33] The Applicant submitted that the extension to the finishing times of ordinary hours contained in clause 27.2(b)(iii) of the Award did not apply to a consideration of all Coles stores nationally, and that it was appropriate to apply the terms of the Award on a store-by-store basis 11, for the following reasons:

[34] With respect to paragraph [31] of the Applicant’s submissions extracted above, the Applicant provided as an Annexure to her Affidavit at PAV-16, her following enquiry to and response from the Fair Work Ombudsman:

[35] The Applicant gave an example of an extension to trading hours using her interpretation of clause 27.2(b)(iii) as follows:

[36] The Applicant submitted that there were thousands of Coles employees whose regular hours of work involved a finish time beyond the ‘ordinary hours’ as defined in the Award (the Applicant submitted that these finishing times depended on the individual store’s trading hours) or whose shifts commenced in the early hours of the morning (before 5:00am).

[37] The Applicant provided two examples of her rosters as Annexures PAV-4 and PAV-5 to her Affidavit. The roster at PAV-4 is the Applicant’s first permanent Team Members Roster upon commencing her part-time employment (with a roster start date of 10 September 2012), and details a 4 week cycle, with the Applicant working the same shifts for each of the 4 weeks (at 12 hours per week) as follows:

[38] The roster annexed at PAV-5 is the Applicant’s current Team Member, detailing a 4 week roster cycle, with identical shifts each week (again for 12 hours each week) as follows:

‘Specifically employed’

[39] The Applicant argued that she was employed as a ‘shiftworker’, within the meaning of the term in clause 30.1 of the Award, because she was ‘specifically employed’ to work hours which met the definition of ‘shiftwork’ under clause 30.2 of the Award. The Applicant submitted that these hours were her core work hours and were not ‘additional hours’ or ‘overtime’.

[40] In considering the shiftworker term in the Award, the Applicant referred to the approach to interpreting Award entitlements in the Decision of Kucks v CSR Ltd. 13 The Applicant submitted that she adopted this approach, and relied on the following extract, where his Honour observed:

[41] With respect to the requirement under the Award that the Applicant was ‘specifically employed’ as a shiftworker, the Applicant addressed the meaning of the word ‘specifically’, as follows:

[42] The Applicant’s Contract of Employment, dated 7 September 2012, is extracted as follows 15:

[43] The Applicant submitted that the hours referred to as “normal working hours” in clause 5 above are clearly not considered as overtime, as overtime is distinguished from her normal working hours.

[44] The Applicant submitted that the ‘normal working hours’ referred to in her employment contract are defined in the Applicant’s Team Member Roster, which varies according to the operational needs of Coles and the Applicant’s availability. The details of two of the Applicant’s Team Member Rosters are extracted above.

[45] The Applicant noted that, under clause 10 of the Award, there is positive duty on the employer to inform the employee of their terms of engagement. Clause 10 is extracted as follows:

10. Employment categories

[46] The Applicant submitted that Coles did not inform the Applicant that she was not employed as a ‘shiftworker’ in circumstances, the Applicant submitted, where she stated it was otherwise reasonable for her to infer based on her hours of work that under the Award she was a ‘shiftworker’. In the circumstances, the Applicant argued she would also be implicitly ‘specifically employed’ as a shiftworker, due to Coles’ failure to inform her otherwise.

[47] The Applicant argued that, in her circumstances, classification as a shiftworker was the most appropriate under the Award and submitted it was also “logical to assume that employees were intended to be governed under the classification which is most appropriate to the work performed, not some arbitrary labelling” 16.

Nightfill

[48] The Applicant submitted it was clear that Coles classified her as a “nightfiller”. The Applicant stated that she indicated that she wanted to work in “nightfill” in her application for employment. The Applicant’s application for employment with Coles is annexed at PAV-1 to the Applicant’s Affidavit 17 and states “Please indicate which departments you are interested in working in within our stores:-Nightfill”.

[49] The Applicant also submitted that the option of working “nightfill” is reflected in Coles’ Rostering Availability Questionnaire. A copy of the Rostering Availability Questionnaire was annexed to the Applicant’s Affidavit at PAV-8 18. It is extracted as follows:

[50] The Applicant submitted that is was clear that nightfillers were intended to fall under the Award definition of ‘shiftworkers’ when the Award was originally drafted and that the shiftwork provision in the Award was drafted with the intention of providing an appropriate safety net for nightfill employees.

[51] The Applicant relied on a submission made by the SDA in July 2008 in relation to Award Modernisation matter AM2008/10 19, which the Applicant submitted provided insight into the intent of the shiftwork provision under the Award. It was submitted that “nightfill” was previously an exception to work outside ordinary hours being treated as overtime. The Applicant relied on the following extract of the SDA’s submissions:

[52] The Applicant submitted that it should be inferred from the above submissions that the SDA intended for a ‘simple’ arrangement for shiftwork. The Applicant submitted it was open to the Commission to make a finding that an obligation placed on an employer to ‘expressly’ employ a person as a shiftworker is not a ‘simple’ arrangement.

[53] The Applicant relied on an extract of the Transcript of the Award Modernisation proceedings conducted by Vice President Watson in matter AM2008/10 on 8 August 2008. The Applicant relied on the following extract of submissions made by Ms Burnley of the SDA in those proceedings:

[54] The Applicant relied on the Decision of Casha v Woolworths 20 to support her argument in relation to the interpretation of nightfill provisions as opposed to overtime provisions in a previous award. The Applicant relied on the following extract from the Decision, in which Schmidt J stated:

[55] The following extract from the Decision of in San Remo (Southerland) P/L -v- Farrell 21 (San Remo) was relied on in the matter of Casha v Woolworths. In San Remo, Macken J stated as follows:

[56] The Applicant submitted that the history of the Award making process and the approach adopted in the drafting of the Award, gave rise to an inference that the intent of the award drafters was for night-fill operations to be covered by the ‘shiftwork’ provisions and that it was reasonable to conclude that the Applicant is a ‘shiftworker’ for the purposes of Award based on the historical intention of the parties in relation to nightfill workers.

Shiftwork and overtime rates under the Award

[57] The Applicant argued that clause 30.1 of the Award preserves higher overtime rates for work which would otherwise constitute ‘shiftwork’ performed by non-shiftworkers who are not casuals. For example, it was submitted that ‘shiftworker’ rates (130%) are lower than overtime rates (150% for the first three hours and 200% thereafter.) The Applicant noted that under the Award, a penalty rate of 25% is applied to any employee who works ordinary hours after 6.00 pm on weeknights, with overtime rates payable once ordinary hours cease.

[58] The Applicant provided calculations to illustrate her overall position as shiftworker versus a non-shiftworker under the Award, for her current roster, highlighting the differences between the shiftworker rates for performing shiftwork, and the overtime rates if she was deemed not to be performing shiftwork.

[59] The Applicant’s calculations indicate that as a shiftworker under the Award, she would be entitled to a total gross weekly amount of $357.73 (excluding superannuation, annual leave and personal/carer’s leave accruals and laundry allowance).

[60] The Applicant submitted that, if she was deemed to be a non-shiftworker under the Award, she would be entitled to a total gross weekly amount of $379.12 (excluding superannuation, annual leave and personal/carer’s leave accruals and laundry allowance). These calculations for a non-shiftworker are based on an entitlement to overtime rates for 10 out of the 12 hours on her roster.

[61] The Applicant’s calculations provided a total gross weekly amount of $299.39 as payment for her roster under the 2011 Agreement (excluding superannuation, annual leave and personal/carer’s leave accruals and laundry allowance).

[62] The Applicant argued that her status as a shiftworker or a non-shiftworker under the Award would affect the applicability of superannuation, annual leave and personal/carer’s leave accruals and therefore the calculations. The Applicant provided calculations for these accruals and set out the reasoning for such as follows.

Annual leave, personal/carer’s leave and superannuation accrual on overtime rates

[63] The Applicant considered the difference between ordinary hours worked within a defined spread of hours (such as those under Clause 27.2 of the Award), and an employee’s ordinary hours of work for the purposes of annual leave and personal/carer’s leave.

[64] The Applicant submitted that if an employee whose ordinary or normal hours of work were wholly outside the spread of ordinary hours (for example, as defined in clause 27 of the Award), they would not be entitled to accrue any annual leave, sick leave or superannuation as they would be paid entirely at overtime rates.

[65] The Applicant submitted that, if an employer could “arbitrarily” classify persons such as the Applicant as other than a shiftworker, there is no provision in the Award for such workers who are employed on a permanent part-time basis to accrue the intended pro-rata rates of annual leave or personal leave (which form part of the NES) on hours paid at overtime rates (which form part of the Applicant’s ordinary hours of work).

[66] The Applicant relied on sections 87(2) and 96(2) of the NES in the Fair Work Act, which provide that entitlements to paid annual leave and paid personal/carer’s leave, respectively, accrue according to an employee’s ordinary hours of work. The Applicant submitted overtime rates of pay did not count towards the accrual of annual leave or personal/carer’s leave.

[67] In the Applicant’s case, she submitted, if she was not a shiftworker under the Award, and was instead paid overtime for hours worked outside the ordinary hours, she would only be entitled to payment for superannuation on 2 hours worked within the ordinary hours each week. This would be for the hour worked each on Tuesdays and Wednesdays between 8:00pm and 9:00pm. The Applicant cited an example in the Superannuation Guarantee Ruling 23, whereby an employee was not entitled to accrue superannuation on earnings paid as overtime for work performed outside a “bandwidth” (ordinary hours of work). The Applicant submitted that clause 27.2 of the Award, which details the spread of ordinary hours, operated as a similar bandwidth for the purposes of superannuation. Clause 27.2 is repeated for ease of reference:

[68] The Applicant submitted that 10 of her 12 rostered hours fell outside the bandwidth of the ordinary hours in Clause 27.2:

[69] The Superannuation Guarantee Ruling that was relied on by the Applicant is SGR 2009/2. The Applicant highlighted the following examples:

[70] It was argued by the Applicant that the fact that her ‘normal working hours’ extended beyond the store’s trading hours was consistent with her classification as a ‘shiftworker’ under the Award. In addition, the Applicant submitted that this construction also conformed to the minimum entitlements set out in the National Employment Standards and provided for superannuation to be paid on all of the Applicant’s ‘normal working hours’.

[71] The Applicant submitted that the potential for a “grave loss of basic entitlements”, dependent on the use of words by an employer was not what was intended under the Award.

[72] The Applicant submitted that it was reasonable and practical to interpret a ‘shiftworker’ as someone who is employed to work shifts which meet the objective definition of ‘shiftwork’ in clause 30.2 of the Award.

[73] The Applicant argued that the Commission should interpret the Award definition of ‘shiftworker’ with emphasis on the work performed, rather than the labelling or form of words used by an employer, particularly when the term ‘shiftworker’ had no relevance (under the 2011 Agreement).

[74] Further, the Applicant submitted that she would still be better off under the Award than the Agreement if she was classed as a non-shiftworker and received no superannuation at all.

[75] The Applicant submitted that, as a ‘shiftworker’ under the Award, and accruing superannuation, annual leave and personal/carer’s leave on her 12 rostered hours, she would be $62.54 per week (gross) better off in comparison to the 2011 Agreement.

[76] If she was classified as a non-shiftworker under the Award, the Applicant submitted she would still be between $51.91 and $22.20 per week better off under the Award than the Agreement. The Applicant’s calculations state that she would be $51.90 better off per week than the Agreement as a non-shiftworker under the Award, (accruing superannuation, annual leave and personal/carer’s leave on her 12 rostered hours). The Applicant’s calculations state that she would be $22.20 better off per week than the Agreement as a non-shiftworker under the Award, where she only accrued superannuation, annual leave and personal/carer’s leave on 2 of her 12 rostered hours.

[77] The Applicant submitted that, “no matter what extreme interpretation is applied in Coles’ favour, the Applicant would still be better off” under the Award than the 2011 Agreement.

Applicant’s submissions in reply

[78] The Applicant filed submissions in reply, which addressed the submissions of Coles.

[79] The Applicant referred to two Federal Court Decisions, which the Applicant submitted, supported her argument that an employee’s rostered hours of work are the determinative factor of whether that employee is a shiftworker.

[80] In Fair Work Ombudsman v Mai Pty Ltd & Anor 24, the Federal Court dealt with the under payment of 7-Eleven workers in breach of the Award. The Applicant relied on the following extracts from that Decision as follows:

[81] The following extracts from the above Decision were also relevant to the Federal Court’s consideration of the failure to pay shift work rates:

[82] In Fair Work Ombudsman v Hiyi Pty Ltd & Ors 25, the Federal Court held that:

[83] The Applicant submitted that in both Federal Court cases, the employees were found to have worked a variety of hours over the assessment period, accruing different rates of pay, including shiftwork rates, in circumstances where the Award was disregarded. The Applicant submitted that there was no reference to the Federal Court having been provided with evidence or being satisfied that the employees were ‘specifically employed’ as ‘shiftworkers’ by reference to a ‘consensual arrangement’ and that the rostered hours of work were the determinative factor in both cases and this approach should be followed by the Commission.

[84] The Applicant also submitted that, had the framers of the Award intended for a person to be expressly informed at the commencement of their engagement as an employee as to their classification as a shiftworker or non-shiftworker, this requirement would have been reflected in clause 10 of the Award.

Summary of Respondents’ submissions

Coles’ submissions

[85] Coles submitted that the issue of whether or not Mrs Vickers as an individual is a shiftworker is of marginal relevance to the substantive application for termination of the 2011 Agreement. With respect to the calculations and comparisons provided by the Applicant, Coles submitted that these were not relevant to whether, at law, Mrs Vickers is a shiftworker for the purposes of the Award.

[86] Coles submitted that Mrs Vickers was not a shiftworker pursuant to their construction of Clause 30.1 of the Award which is as follows:

[87] It was submitted that this construction was opposed to the Applicant’s construction that the Applicant is a shiftworker because she has been specifically engaged to work rostered hours that meet the definition of “shiftwork” pursuant to clause 30.2 of the Award and that these hours were her core hours.

[88] Coles provided as evidence a Witness Statement of Ms Christine Pamela Smith, State HR Manager (acting) and a Witness Statement of Ms Amber Millhouse, Senior Associate, of Seyfarth Shaw solicitors. These statements were re-filed as Affidavits in accordance with the Directions and an objection from the Applicant. Coles submitted that Ms Smith’s evidence demonstrated that Mrs Vickers was not specifically employed by Coles as a shiftworker under the Award and at the commencement of Mrs Vickers’ employment, she was not employed specifically as a shiftworker.

[89] However, Ms Smith gave evidence at the hearing that she was not familiar with the shift work clause in the Award, nor had she looked at the definition in relation to this application 27.

[90] Coles argued that Mrs Vickers was employed as a Store Team Member under the 2011 Agreement which does not contain a provision for shiftwork. Coles noted that neither the 2011 Agreement nor the 2014 Agreement provided for team members to be employed as shiftworkers.

[91] Coles noted that there is a dispute as to whether two out of three of Mrs Vickers’ shifts are shiftwork shifts (as alleged by Coles) or whether all of Mrs Vickers’ shifts are shiftwork shifts (as alleged by the Applicant). Coles submitted that even though two out of the three shifts for which Mrs Vickers was rostered in the period nominated fall within the designated hours of shiftwork within the meaning of clause 30.2 of the Award, this did not mean that Mrs Vickers had been “specifically employed” as a shiftworker under the Award and that even if all of Mrs Vickers’ shifts are shiftwork shifts as she alleged (and was denied by Coles), this did not change the outcome that Mrs Vickers has not been specifically employed as a shiftworker under the Award.

Legal principles in interpreting Awards

[92] Coles submitted that they had not been able to locate any decision dealing with clause 30.1 of the Award and noted that the decision of the Full Bench making the Retail Award did not deal specifically with shiftwork 28.

[93] Coles submitted it was necessary to apply the principles of award interpretation in ascertaining the meaning of clause 30.1 and summarised the principles applied in interpreting awards, as follows:

Coles’ interpretation - A plain reading of clause 30.1

[94] Coles submitted that a plain reading of clause 30.1 supported their interpretation of “specifically employed as shiftworkers under this Award” (emphasis added by Coles).

[95] Coles also referred to the definition of the word “specific” as defined in the Macquarie Dictionary (4th Ed) as “having a special application, bearing or reference; specifying, explicit, or definite” and “specify, precise, or particular”. Coles submitted that this definition suggested that to be specifically employed required a designated and precise or particular reference to employment as a shiftworker and that it was not enough that an employee is simply rostered at the outset of their employment to do “shiftwork” within the meaning of clause 30.2 of the Award.

[96] Coles submitted that, had the Full Bench, in making the Award, intended that the definition of “shiftworker” under clause 30.1 be referable to the rosters worked by the employees only, this could have easily been given effect by defining a shiftworker in clause 30.1 as an employee employed to work rostered hours that meet the definition of “shiftwork” under clause 30.2. It was submitted that these were not the words that were used by the Full Bench in clause 30.1.

[97] It was submitted on behalf of Coles that clause 30 distinguished between the terms “shiftworker” and “shiftwork”. It was noted that “Shiftworker” is the designation of the employee’s role and appears in the definition clause (in clause 30.1), while “shiftwork” hours are defined in clause 30.2 as simply the hours that comprise the shift that attracts and accrues the shiftwork penalties in clauses 30.3 and 30.4. It was submitted that this distinction pointed to an interpretation that a shiftworker is a designated role to which the employee is specifically employed at the outset of their employment.

Certainty

[98] Coles submitted that its interpretation, that a shiftworker has to be specifically employed as such at the outset of the employment, provided certainty in relation to whether an employee is a shiftworker within the meaning of the Award, unlike the Applicant’s interpretation.

[99] Coles noted that under the Award, an employee’s roster can be in a cycle of up to four weeks and there is no requirement that an employee’s roster in one week needs to be identical to the employee’s roster in other weeks of the roster cycle. It was submitted that clause 28 envisaged that rosters may vary over a four week cycle.

[100] On the interpretation of clause 30.1 advanced by Mrs Vickers, it was submitted by Coles that there would be a difficulty in determining if the employee is a shiftworker if that employee is rostered on “shiftwork rosters” in one week but not in other weeks in the four week cycle. Coles posed the questions: “for an employee who works four shifts per week (16 shifts over a four week cycle), how many shifts need to be shiftwork shifts for that employee to be a shiftworker? Do all the shifts need to be shiftwork shifts within the meaning of clause 30.2, or most of the shifts, or a simple majority of the shifts?” and submitted that the uncertainty of Mrs Vickers’ approach to interpreting clause 30.1 was not a sensible industrial outcome.

[101] It was submitted that the approach adopted by Coles enables an employer and an employee to understand clearly, at the outset of the employment, the obligations and entitlements under the Award.

[102] Coles noted that there were two critical obligations and entitlements as follows:

[103] Coles submitted that, in circumstances where contraventions of Awards involve civil penalties under the Act, the determination of whether an employee is a shiftworker ought be clear, and enable employers, employees and unions to ascertain with certainty whether an employee is or is not a shiftworker.

[104] Therefore, Coles submitted that the designation of employment status at the time of the employee’s engagement was not “arbitrary labelling” (as submitted by the Applicant) but rather a fundamental responsibility of the employer to ensure that its employees are properly categorised, and can therefore understand their rights and entitlements under the Award and be paid accordingly, thereby avoiding a constant state of uncertainty around the proper status of the employee.

[105] It was submitted that, in an environment where hours of work and rosters can change regularly, such designation makes good industrial sense and ought to inform the proper interpretation of clause 30.

[106] Mr Wood, for Coles, submitted that there was no ‘usual meaning’ of shiftworker as follows:

Clause 30.7 - rostering restriction

[107] Clause 30.7(b) provides that “rosters of shiftworkers cannot be arranged so as to have the shiftworker work both shiftwork and non-shiftwork in the same week.” Coles submitted that this clause specifically and expressly contemplates that a shiftworker is capable of working non-shiftwork in a four week roster cycle (as distinct from working shiftwork and non-shiftwork in the same week, which is prohibited). It was submitted that this acted against an interpretation of clause 30.1 that a “shiftworker” is defined by reference to their rostered hours as clause 30 contemplates shiftworkers being engaged to perform non-shiftwork shifts.

Consistent with other provisions in the Award

[108] Coles submitted that the designation of an employee as a shiftworker or a non-shiftworker at the outset of their employment is consistent with other provisions of the Award that require an employer to specifically designate an employee in a particular class at the outset of the employment. Coles relied on the following clauses:

[109] Coles submitted that the examples above clearly indicate that the Award does not contemplate that the status of a full-time, part-time or casual employee is to be borne out by the manner in which the employee is engaged in practice but require specific designations and agreement at the outset of employment. Therefore, Coles submitted there is nothing unusual or inconsistent with an interpretation of the Award that adopts the same approach to employing a shiftworker.

Mrs Vickers’ Sunday shift

[110] Coles did not agree that the Applicant’s Sunday shift is a shiftwork shift within the meaning of clause 30.2 of the Award. Coles argued that, while the Applicant was not specifically employed as a shiftworker and therefore her rosters are not ‘to the point’, the issue of whether the Applicant’s Sunday shift is a shiftwork shift was instructive of the uncertainty inherent in Mrs Vickers’ approach to the interpretation of clause 30.1.

[111] Coles submitted that Mrs Vickers’ Sunday shift, worked between 6:00pm and 10:00pm, was not a shiftwork shift. Coles argued that it was a retailer whose trading hours extended beyond 9:00pm Monday to Friday or 6:00pm on Saturday or Sunday, and therefore, under clause 27.2(b)(iii) of the Award, Coles’ finishing time for ordinary hours on all days of the week is 11:00pm. Clause 27.2 is repeated here for ease of reference:

[112] Coles argued that Mrs Vickers’ argument that clause 27.2(b)(iii) operated on a store by store basis was incorrect, and that the clause should be assessed by reference to Coles as a single employer or retailer, and not on a shop by shop basis. Coles submitted that its trading hours in general across the nation extend beyond 9:00pm on Monday to Friday and beyond 6:00pm on Saturday or Sunday. Coles relied on the evidence of Ms Amber Millhouse, Senior Associate at Seyfarth Shaw, in this respect, which is extracted as follows:

[113] Coles submitted that their interpretation of clause 27.2(b)(iii) was correct as the clause specifically uses the word “retailer” as opposed to “shop”, while other provisions in the Award use the word “shop”. Coles cited as examples clause 30.3, (which deals with substituting shifts on a public holiday for shiftworkers, which requires mutual agreement between an employer and the majority of employees in a particular shop); and clauses 28.3 and 28.4 (which deal with the implementation of 38 week rosters). It was noted that both clauses 28.3 and 28.4 deal with making an assessment “in each shop” as to which method best suits the business and applying different methods of implementation of a 38 hour week to different employees in “the shop or establishment concern”. Further, Coles submitted that clause 20.3 of the Award provides that, where an employee is required by their employer to move temporarily from one branch or “shop” to another for a period not exceeding three weeks, all additional transport costs so incurred will be reimbursed by the employer.

[114] It was submitted that the clauses clearly show that the Award distinguished between an employer or retailer, on the one hand, and a particular shop or establishment on the other.

[115] Coles referred to the Full Bench Decision 39 relating to applications to vary the General Retail Industry Award 2010 which inserted clause 27.2(b)(iii) into the Award. Coles relied on the following extract from the Decision, where the Full Bench stated:

[116] Coles submitted that the reference to “business” in this Decision must be a reference to the business of the employer as a whole rather than varying ordinary trading hours on a store by store basis.

[117] Therefore, Coles submitted, Mrs Vickers’ Sunday shift does finish within the ordinary hours of Coles supermarkets (that is, it finishes before 11:00 pm) and is therefore not shiftwork under clause 30.2(b). For this reason, Coles submitted that only two of Mrs Vickers’ three shifts are shiftwork shifts for the purposes of clause 30.2.

[118] Coles argued that Mrs Vickers did not lead any evidence or make any submissions in relation to how local trading hour laws impact on this issue of whether to apply the clause on a store by store or national basis, nor of any community expectations and therefore argued her submission that her interpretation was consistent with local trading laws and community expectations ought to be ignored.

[119] Coles relied on clause 27.1 of the Award, which provides that:

[120] Coles submitted that local trading hours ought not to have any effect on the interpretation of clause 27 of the Award. Coles argued that if Mrs Vickers’ argument is accepted, then, in effect, the regulation of shiftwork under the Award would be a function of State Government (who make local trading laws), local council or landlord requirements. It should be noted in Queensland, trading hours are set by the Queensland Industrial Relations Commission.

[121] Coles addressed the Applicant’s reliance on the view and reasoning of the Fair Work Ombudsman (FWO), in respect of clause 27.2(b)(iii). Coles argued that the FWO’s view does not, in fact, support Mrs Vickers’ interpretation and noted that the FWO’s view in relation to clause 27.2 was ‘somewhat unclear’. The FWO’s view is extracted as follows:

[122] Coles submitted that the FWO’s observation did not appear to point one way or the other in relation to an interpretation of sub-clauses 27.2(a) and (b).

[123] Coles noted that if the Commission adopted the approach to interpreting clause 30.1 advanced by Coles, then it is not necessary for the Commission to determine this issue, as it does not matter how many of Mrs Vickers’ shifts are shiftwork shifts.

Arbitrary labelling

[124] In response to Mrs Vickers argument that the classification of employees as shiftworkers or otherwise should not be the product of arbitrary labelling, but must be appropriate to the work performed, Coles submitted that this argument is misconceived. Coles submitted that their interpretation did not involve arbitrary labelling but, rather, a consensual arrangement as to the nature of the employment between the employer and the employee at the outset of the employment.

[125] Coles illustrated that if the employer wanted to simply “arbitrarily” avoid the operation of clause 30, it could simply roster an employee to commence work prior to 6:00 pm. Coles submitted that the interpretation of clause 30.1 ought not be premised on the way in which an employer could arbitrarily determine whether an employee is a shiftworker or not.

[126] Coles submitted that the Commission should not adopt an approach to interpretation through “a lens of evasion, whereby employers are assumed to seek to arbitrarily avoid their obligations” under the Award. It was submitted that the words in the Award should be given their plain and ordinary meaning in the context of the Award as a whole and its industrial circumstance.

Better off

[127] Coles submitted that an employee will not always be better off being a shiftworker under the Award and that there are a number of times under the Award where the penalty or overtime rate for a non-shiftworker is greater than the rate payable for shiftwork.

[128] Coles provided the following examples:

[129] Mr Wood QC submitted at the hearing as follows:

Annual Leave and Personal/Carer’s Leave

[130] The Applicant argued that there is no provision in the Award for employees who are employed as non-shiftworkers under the Award but work shiftwork to accrue annual leave or personal leave because the hours are paid at overtime rates (and therefore do not accrue annual and sick leave, but form part of the employee’s ordinary hours of work). Coles submitted that this argument was misconceived.

[131] Clause 30.6 of the Award provides as follows:

[132] Clause 32.1 of the Award provides that “annual leave is provided for in the NES”. Division 6 of Part 2-2 of the Act deals with annual leave. Section 87(1) of the FW Act provides that for each year of service with his or her employer, an employee is entitled to four weeks of paid annual leave. Section 87(2) provides that:

[133] Clause 33.1 of the Retail Award provides that “personal/carer’s leave and compassionate leave are provided for in the NES”. Personal leave and compassionate leave is dealt with in Division 7 of Part 2-2 of the Act. Section 96(1) of the Act provides that for each year of service with his or her employer, an employee is entitled to ten days of paid personal/carer’s leave. Section 96(2) provides that:

[134] Coles submitted that sections 87(2) and 96(2) were clear that it is the employee’s ordinary hours of work that accrues the annual leave, and not the ordinary hours of work as defined in a modern award (such as clause 27.2 of the Award) or an enterprise agreement. Coles submitted that employees who work rosters that fall within the definition of “shiftwork rosters” in the Award are working their ordinary hours, and therefore accrue leave in the same way as any other employee.

[135] It was submitted that Coles’ analysis was consistent with the interpretation of s.96 of the Act in AWU v BP Refinery (Bulwer Island) Pty Ltd 42. Coles submitted as follows:

[136] It was submitted by Coles that, while the decision in BP Refinery deals with a different issue, the principle set out in [56]-[57] of that decision was instructive and Coles argued that the ordinary hours of work for the purposes of s.96 are those performed by the employee, and not by reference to the spread of ordinary hours in an enterprise agreement. Coles submitted that, if Mrs Vickers’ approach was correct, then, like in BP Refinery, different employees would be entitled to different accruals of leave for the same hours worked, depending on the different spreads of ordinary hours in an enterprise agreement.

Superannuation

[137] Coles accepted, for the purposes of this proceeding only, the approach adopted by Mrs Vickers in relation to the calculation of superannuation, that is, that due to the operation of a bandwidth clause (the ordinary hours of work under Clause 27.2), an employee is not entitled to accrue superannuation on earnings paid as overtime. Coles submitted that Mrs Vickers’ enjoyed superannuation benefits under the 2011 Agreement not otherwise available under the Award. Mr Wood QC submitted as follows at the hearing:

Case Authority relied on by Applicant

[138] Coles submitted that neither of the Decisions in Casha v Woolworths Ltd 44 and San Remo (Southland) Pty Ltd v Farrell45 had any bearing on the issue in this proceeding.

[139] Coles submitted that the Decision in San Remo dealt with whether an employee was classified as a “shop assistant in charge” under the then Shop Employees’ (State) Award (NSW), notwithstanding that he was designated as a “manager” of the store in his employment contract. Justice Macken, sitting in the Industrial Commission of New South Wales, stated that “Mr Farrell must be ‘a shop assistant’ in charge of a shop in order to have the Award apply to him”. His Honour then concluded that Mr Farrell performed work of a type consistent with the duties of a second-in-charge under the Award, and said that: “without canvassing the ambit of the Award beyond the particular facts of this case, it would seem clear that Mr Farrell is among the classes of employee ‘in this Award’ who work in or in connection with a retail shop.”31

[140] It was submitted by Coles that the test of whether an employee fits within the classification of an Award (as dealt with in San Remo) is completely different from the issue in this proceeding, whether an employee is specifically engaged as a shiftworker and that the decision in San Remo does not therefore bear upon the interpretation of clause 30.1 of the Award.

[141] The decision in Casha dealt with the operation of the shiftwork provision in the then Shop Employees’ (State) Award (NSW). Clause 6A of that Award provided that the shiftwork clause “shall apply only to night fill operations performed in a shop”. Coles submitted that the issue in Casha was whether clause 6A applied to the work performed by the employee the subject of that proceeding and therefore what his rate of pay ought to have been and that clause 6A was expressed in completely different terms to clause 30 of the Award under consideration in this matter. It was submitted that clause 6A applied with respect to the nature of the operations performed in a shop. In contrast, Coles submitted, clause 30.1 referred instead to an employee being specifically employed as a shiftworker under the Retail Award and therefore, Coles submitted the decision in Casha has no bearing on the interpretation on clause 30.1 of the Award.

Nightfill

[142] With respect to the Applicant’s argument that night fillers were intended to fall under the definition of “shiftworkers” pursuant to clause 30 of the Award, Coles submitted that this argument could not be accepted because clause 30 does not actually use the term “night fill operations” and the history of the pre-reform industrial instruments in the retail industry militated against Mrs Vickers’ argument.

[143] Coles noted that the shiftwork clauses of the pre-reform industrial instruments applied specifically to night fill operations and that, in making the Award, the Full Bench expressly stated that the modern award was derived from existing awards and NAPSAs. Coles submitted it was clear from the terms of clause 30 itself, that the concept of night fill or stock replenishment has been deliberately taken out of the Award and that from this it should be inferred that whether an employee is specifically engaged to do “night fill work” or otherwise performs night fill operations, is not relevant to assessing whether that employee is a shiftworker pursuant to clause 30.1. Coles submitted the issue was simply whether the employee is specifically employed as a shiftworker.

Overtime

[144] At the hearing, Mr Wood referred to clause 29 of the Award, relating to overtime. Mr Wood made the following submission in respect of the position of a non-shiftworker, who was entitled to overtime, as opposed to a shiftworker:

SDA’s submissions

Principles of construction

[145] The SDA also referred to the observations of Madgwick J in Kucks v CSR Ltd 47 which are extracted in the Applicant’s submissions, that a “narrow or pedantic approach” is to be shunned and that the “search is for the meaning intended by the framer(s)” of the Award. The SDA emphasised the following extract:

[146] The SDA also referred to the Decision in Amcor Ltd v Construction, Forestry, Mining and Energy Union 48, in which the High Court dealt with the proper approach to the construction of an industrial instrument. Gleeson CJ and McHugh J said:

[147] The SDA submitted that it was well-settled that the words of an award are not to be construed “in a vacuum divorced from industrial realities” referring to the case of City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union 50. French J (as his Honour then was) also observed:

[148] The SDA submitted that a textual analysis of the Award ought to begin, and may even end, with clause 30.1 of the Award, for it is this sub-clause which provides for the application of the entire clause. It was submitted that if, properly construed, clause 30 did not apply to the Applicant’s circumstances then that was the end of the matter.

[149] It was submitted that the meaning of the phrase “specifically employed as shiftworkers” is critical as application of clause 30 of the Award depended upon an employee being “specifically employed as (a) shiftworker(s)”.

[150] The SDA agreed with the Applicant’s submissions in respect of the ordinary meaning of “specifically” and “specific”, the former being the adverb form of the latter.

[151] In applying this ordinary meaning, the SDA submitted that the use of the term "specifically” pointed to the need for an employee to have a precise, definite status in his or her employment as a “shiftworker”.

[152] The SDA submitted that the requirement for persons to be “specifically employed as shiftworkers” should be given its full effect and that it was plain clause 30 was only intended to apply to an employee who has that designated status. Further, the SDA submitted that this construction was reinforced by the inclusion in the Award of clause 30.1(b) which contemplates that a person may be employed as a “non-shiftworker” and notwithstanding any additional hours or overtime the person may work from time to time, this will not change the person’s status as a “non-shiftworker”.

[153] It was submitted that clause 30 draws a distinction between a person “specifically employed” as a “shiftworker” and a person who undertakes “shiftwork” as that word is defined and that this distinction was deliberately drawn. The SDA submitted that, if the intention had been for clause 30 to apply to any person engaged in “shiftwork”, then it would have been a simple matter for the clause to have stated this explicitly, by a form of words replacing “persons specifically employed as shiftworkers” with “This clause will apply only to persons employed undertaking shiftwork under this award.”

[154] The SDA submitted there was no industrial reality which undermines this construction.

[155] The SDA submitted that the Applicant’s material does not provide any basis for concluding that the Applicant was “specifically employed” by Coles as a shiftworker and that there is nothing in her Contract of Employment which supports a finding that she was so employed.

[156] The SDA submitted that the mechanical provisions of clause 30, for example as to the rates of pay, have no application to the Applicant’s circumstances and that, in any event, the Applicant is not employed to work “shiftwork” as that term is defined in clause 30.2 of the Award.

[157] The SDA noted that clause 30.2(a) does not stand alone and must be read together with clause 30.2(b). Further, it was submitted, clause 30.2(b) must be read with clauses 27.2 and 30.7. The SDA observed the following in regards to the interaction of the clauses:

[158] The SDA submitted that this demonstrated an intention that, where a person is employed to work non-shiftwork, as the Applicant is, that person will not be taken to be working shiftwork as well.

[159] The SDA submitted that the first point was that construing the phrase “the span of ordinary hours specified in this award” in clause 30.2(b) requires that reference be made to clause 27 which provides for “Ordinary Hours of Work”.

[160] The SDA submitted that there were competing contentions as to the meaning of the proviso in clause 27.2(b)(iii). The SDA noted that the Applicant submitted that “trading hours” for the purposes of this sub-clause are the trading hours at the employee’s place of work, but the SDA’s position was that this submission should be rejected as it required the insertion of additional words “at the employee’s place of work” into this sub-clause when there is no warrant or necessity to so.

[161] It was submitted that the words of the sub-clause are clear in their terms and make sense without importing any such words. The SDA’s submission was that the phrase “retailers whose trading hours” simply means the trading hours of the particular retailer wherever it trades within the scope of coverage of the Award and that there was nothing artificial in applying this construction. Further, the SDA submitted that there was no industrial reality which would support a construction whereby a national or multi-shop retailer should have a differing span of ordinary hours for the purposes of the Award at each of its shops.

[162] The SDA disagreed with the Applicant’s submission that the finishing time of ordinary hours is worked out on a day by day basis depending on whether on a given day the particular retailer’s trading hours extend beyond the times stipulated in clause 27.2(b)(iii). They submitted this construction conflicted with the unambiguous language of the Award and that clause 27.2(b)(iii) provides that where a retailer’s trading hours extend beyond the times stipulated depending on the day of the week “the finishing time for ordinary hours on all days of the week will be 11.00 pm.” (emphasis by the SDA).

[163] The SDA submitted that, on the proper construction of this sub-clause, the effect is that for retailers whose trading hours extend beyond 9.00 pm Monday to Friday or 6.00 pm on Saturday or Sunday, ordinary hours may be worked within the following spread of hours:

[164] The SDA noted that there was no dispute on the Applicant’s material, that Coles is a retailer whose trading hours extend beyond 9.00 pm Monday to Friday and 6.00 pm on Saturdays. The SDA submitted that the consequence was that the spread of hours applicable to the Applicant’s employment (the span of ordinary hours specified in this Award), is the spread of hours set out in the preceding paragraph.

[165] The SDA submitted that “shiftwork did not include a shift which starts and finishes on the same day within the span of ordinary hours specified in this award”, per clause 30.2(b) and therefore the Applicant’s work which starts and finishes within 7.00am and 11.00 pm on the same day was not shiftwork as defined.

[166] The SDA submitted that, on the Applicant’s current roster, the Applicant is employed to work non shiftwork at least on Sundays.

[167] However, the SDA noted that clause 30.7 of the Award, in relation to preventing rosters that have a shiftworker working shiftwork and non shiftwork in the same week, demonstrated an intention that shiftworkers will be persons employed to exclusively work shiftwork in the same week.

[168] It was submitted that the Applicant is not employed to exclusively work shiftwork in the same week and accordingly, she is not a “shiftworker” for the purposes of the Award and nor does her work constitute shiftwork for the purposes of the Award.

[169] The SDA submitted that the Applicant’s reliance on the submissions made regarding the Award Modernisation AM2008/10 – Retail Industry dated July 2008 was misconceived. The SDA referred to a ‘cautionary note’ expressed by Flick J in Australian Workers’ Union v Cleanevent Australia Pty Ltd 51 as apposite:

[170] The SDA submitted that the resolution of the threshold issue as to the proper construction of clause 30 of the Award, is clear from the language of the Award understood in the light of its industrial context and purpose “without seeking to divine what might permissibly be taken from any submission made in the development of the Award”.

AWU’s submissions

Shiftwork

[171] The AWU submitted that the Applicant’s contention that she is a performing work that is classified as shift work pursuant to clause 30 of the Award was flawed.

[172] The AWU noted that clause 30.2(b) imposes limitations upon what can be considered shiftwork in the context of the Award, and set these out as elements as follows:

[173] The AWU submitted that the effect of the limitation is that any employee who works a shift that commences at or after 6.00 pm (thus satisfying the first element), but finishes at 11.30 pm (thus satisfying the second element) is performing shiftwork so long as the span of ordinary hours ends before 11:30 pm.

[174] The AWU noted that an employee, who works the above arrangement but who finishes at 10.30 pm (where the span of ordinary hours at the store is, for example, 11.00 pm), will not satisfy the third element, and the work that that employee is performing is not able to be considered shiftwork.

Span of hours

[175] The AWU noted that the span of ordinary hours contained in the Award pursuant to clause 27.2(b)(iii) is from 7.00 am to 11.00pm on Monday to Saturday, and from 9.00 am to 11.00 pm on Sunday if the store is a retailer whose trading hours extend beyond 9.00pm from Monday to Friday or 6.00 pm on Saturday or Sunday.

[176] The AWU submitted that, in the context of the Award, Coles was a ‘retailer’ and operates stores, identified in the Applicant’s submission and evidence, where the trading hours extend beyond 9.00pm from Monday to Friday or 6.00pm on Saturday or Sunday.

[177] The AWU submitted that, as Coles is retailer whose trading hours extend beyond 9.00pm Monday to Friday or 6.00 pm on Saturday or Sunday, ordinary hours on all days of the week will be 11.00pm.

[178] The AWU rejected the Applicant’s contention that it was “appropriate to apply the terms of the Award on a store-by-store basis”. The AWU submitted that such a contention would require the proviso placed upon “retailer” that the clause is to be applied on a “store-by-store basis” and noted that there was no such proviso present in the clause. Therefore, the AWU submitted, the ordinary reading of the clause must apply such that Coles is a retailer that operates stores with trading hours beyond 9.00 pm Monday to Friday or 6.00 pm on Saturday or Sunday, so the finishing time for ordinary hours on all days of the week will be 11.00 pm.

Applicant’s Roster

[179] The AWU submitted that, on the Applicant’s roster, and given the span of ordinary hours which applies to Coles, it was clear that the work performed on Sundays by the Applicant falls within the span of ordinary hours, and cannot be called shiftwork and that the Applicant was not performing shiftwork on Sundays.

Clause 30.7

[180] The AWU also referred to the proviso contained in clause 30.7 that an employee cannot be rostered for shiftwork and non-shiftwork in the same week and submitted that the Applicant is not performing work solely that is shiftwork. The AWU submitted that the necessary implication to be drawn from this is that the Applicant is not a shiftworker.

[181] The AWU submitted in conclusion that the Applicant’s reasoning is flawed, and that the Applicant is not performing work that is classified as shiftwork under the Award on Sundays.

[182] It is noted that the AWU does not address the issue of what is required for an employee to be ‘specifically’ employed as a shiftworker under the Award.

AMIEU’s submissions

[183] The AMIEU agreed with the Applicant’s submission that the correct comparator under the Award is either shiftwork or day work with overtime.

[184] The AMIEU, in considering the Applicant’s current hours of work against the Award provisions, noted how few ordinary hours would be performed by the Applicant and that the majority of her hours would be considered overtime. The AMIEU noted that overtime hours may be excluded from the calculation of base rate of pay for leave entitlements and the calculation of Ordinary Times Earnings for superannuation. The AMIEU submitted that if the comparator determined by the Commission was day work with overtime, there may well be unintended consequences for the Applicant and like employees.

[185] In respect of the Applicant’s current hours of work against the Award provisions pertaining to shiftwork, the AMIEU submitted that the hours actually worked appear to ‘fairly neatly fit’ the definition of shiftwork pursuant to subclause 30.2(a) and the AMIEU noted that if the comparator determined by the Commission was shiftwork, the shift loading would be included in the comparison calculations.

[186] The AMIEU submitted that the Applicant’s hours of work, payslips, description of duties and the like, all comprise pertinent background and that the nature of the relationship and work performed ought to be determinative. The AMIEU submitted that the label or name given by the parties is a relevant factor, but should not be decisive.

[187] In this regard, the AMIEU referred to the case of Fair Work Ombudsman v South Jin Pty Ltd 52, in which White J was asked to determine whether employees were most appropriately categorised as casual or permanent employees. At [71], White J observed:

[188] The AMIEU also referred to the case of Fair Work Ombudsman v Grouped Property Services Pty Ltd 53, in which Katzmann J was asked to determine whether workers were employees or independent contractors. At [39], Katzmann J observed:

[189] The AMIEU also noted the observations of Madgwick J in Kucks v CSR Ltd 54 concerning the interpretation of Awards, as relied on by the Applicant and extracted above.

[190] The AMIEU invited the Commission to make a determination as to the correct comparator based on the closest fit within the Award and with reference to the Applicant’s employment, hours performed and factual background and submitted that the shiftwork provisions of the Award appear to provide the closest fit for comparison.

[191] Mr Buckley, appearing for the AMIEU Qld and Federal Branches, submitted the following at the hearing:

[192] Mr Buckley also raised issues regarding the practical implications where the specific employment had to occur at the outset of employment, and the unnecessary limitations this placed on the possibility for an employee to become a shiftworker or non-shiftworker 56. Further, Mr Buckley also questioned the degree of formality or what set of words might be required for someone to be specifically employed as a shift worker, given that there was no requirement in clause 30 for a designation to be recorded in writing57.

[193] Mr Wood submitted at the hearing that Mr Buckley was correct that the agreement is not required to be in writing, nor does it need to be made at the time of entering the contract. Mr Wood stated as follows:

Consideration

[194] This threshold issue relates to the determination of a common comparator to be used for the purposes of bringing evidence in relation to the matters that must be taken into account in the substantive application. In terms of s.226(b), these matters include the views and circumstances of the employees, each employer, and each employee organisation covered by the Agreement, including the likely effect that the termination will have on each of them.

[195] In the event that the 2011 Agreement is terminated, the Award will apply to the Applicant’s employment and her terms and conditions will be, as a minimum, determined by the Award and the NES. The Agreement operates “in complete substitution of any Award or Agreement” 59 and does not incorporate the Award.

[196] It was raised by the SDA in a preliminary Mention that the Applicant, in putting forward a comparison of the 2011 Agreement and the Award in her circumstances, had based her calculations of what her income would be, under the Award, on the assumption that she would be paid as a shiftworker under the Award, as opposed to a non-shiftworker.

[197] Clause 30 of the Award deals with shiftwork. Clause 30.1 specifies that clause 30 only applies to persons specifically employed as shiftworkers under the Award, and not to an employee who is employed as a non-shiftworker and who does additional hours or overtime.

Clause 30.1(a) – ‘specifically employed’

[198] The Applicant argued that whether a person is ‘specifically employed as a shiftworker under the Award’ can be determined by reference to the hours or roster they are employed to work, and if these hours or roster meets the definition of shiftwork in Clause 30.2, then they have been ‘specifically employed as a shiftworker under the Award’.

[199] Coles argued that there had to be an agreement or ‘consensual arrangement’ between an employee and employer for that employee to be ‘specifically employed’ as a shiftworker under the Award. The SDA distinguished the use of term ‘shiftworker’ in Clause 30.1(a) from the use of the term ‘shiftwork’ in the definition in Clause 30.2 and argued that the use of the term ‘specifically’ required an employee to have a ‘designated status’ as a ‘shiftworker’.

[200] The AMIEU noted that clause 30.2(a) defines shiftwork for the purposes of Clause 30 of the Award and that the Applicant’s current roster appeared to fairly neatly fit the definition of shiftwork in clause 30.2(a). The AMIEU submitted that while the label or name may be a relevant factor, the nature of the relationship and the work performed ought to be determinative. It was submitted by the AMIEU that the shiftwork provisions in clause 30 provided the closest fit as a comparator for the Applicant’s circumstances under the Award with the 2011 Agreement.

[201] With respect to the Federal Court Decisions in relation to the 7-Eleven cases relied on by the Applicant (from paragraph [80] above), it is not considered that these Decisions and these passages relied on by the Applicant provide authority as to an approach to determining whether an employee has been specifically employed as a shiftworker under the Award. Neither Decision involves a particular consideration of whether employees were specifically engaged as shiftworkers, nor a finding that the employees were shiftworkers because they worked shiftwork.

[202] Taking into account the inclusion of the word ‘specifically’ in clause 30.1(a), it is determined that there must be a designation as to an employee being employed either as a shiftworker or a non-shiftworker under the Award. I accept that this designation must involve a ‘consensual’ arrangement or a meeting of the minds between an employer and employee as to the designation, which determines where that employee’s rate of pay is derived from in the Award. This designation may or may not be in writing, however, Coles have demonstrated a practice (in managing their significant workforce) on engagement of reducing the employment contract to writing and having the employee sign in acceptance. It is considered that, had the Applicant been specifically employed as a shiftworker under the Award, such designation would have been included.

[203] In the terms of specific employment (being an agreement between the parties at the outset of employment), that is not to say that an employee later could not be specifically employed by the employer as a shiftworker. The parties should be able to point to the circumstances where they were both in agreement that the employer had specifically employed the employee to work shiftwork and this had enlivened the relevant provisions under the Award.

[204] The question as to whether the Applicant was ‘specifically employed as a shiftworker’ under the Award has limited utility in the context where the Applicant was employed under the 2011 Agreement, which does not include a definition of shiftwork, nor provide rates of pay for shift work. Accordingly, there was no need for the Applicant and Coles to have agreed on a designation under the Award upon employment. The designation on employment referred (in writing) to a designation as per the 2011 Agreement for part-time work.

[205] Whilst the Applicant was not (and is not) specifically employed as a shiftworker under the Award currently, the threshold issue relates to the comparator to evaluate the Applicant’s circumstances should the 2011 Agreement be terminated, and the likely effect that termination will have on her.

[206] There has been no evidence filed, or submissions made in respect of whether Coles is likely to, or would seek to, employ the Applicant specifically as a shiftworker or as a non-shiftworker under the Award in the event that the 2011 Agreement is terminated.

[207] In the event that the 2011 Agreement is terminated and the Award applies to the Applicant’s employment, whether the Applicant is specifically employed as a shiftworker under the Award or a non-shiftworker would be subject to a procedure (as has been their practice) of offer and acceptance between Coles and the Applicant.

[208] In the circumstances, it is inconclusive as to what the Applicant’s exact circumstances would be in the event that the 2011 Agreement was terminated, that is, whether the Applicant would be designated by consent as a shiftworker or non-shiftworker.

[209] No submissions were received on the likely designation in the event of termination of the 2011 Agreement. The AMIEU submitted that employment as a shiftworker under the Award was the closest comparator and the Applicant argued that it was the most appropriate. It is accepted that, while the Applicant’s current roster would need to be altered to meet the requirements in clause 30.7 of the Award (for the reasons as outlined below), there would be no impediment where the parties agreed to an arrangement whereby the Applicant was specifically employed as a shiftworker under the Award.

Sunday shift – whether meets definition of shiftwork in clause 30.2(a)

[210] In issue between some of the parties is whether all of the Applicant’s current rostered shifts meet the definition of shiftwork in clause 30.2 of the Award. The Applicant argued that all three of her shifts met the definition, while Coles, the SDA and the AWU submitted that the Applicant’s Sunday shift did not.

[211] It is accepted that the Award contemplates that a shiftworker may work both shiftwork and non-shiftwork in their roster (but not in the same week). Whether the Applicant may perform a shift that does not meet the definition of ‘shiftwork’ in clause 30.2 of the Award does not prevent her from being ‘specifically employed’ as a shiftworker. However, whether the Applicant’s Sunday shift meets the definition of shiftwork is relevant to the consideration of clause 30.7 (considered below). The determination of Coles’ span of ordinary hours is also relevant to the comparison between the Award and the 2011 Agreement and associated calculations.

[212] The Applicant’s roster is repeated here for ease of reference:

[213] The issue between the parties is whether the Applicant’s Sunday shift finishes within the span of ordinary hours specified in the Award. Clause 30.2 of the Award, containing the definition of shiftwork is repeated as follows:

[214] The ordinary hours are set out in clause 27 of the Award, as follows:

27. Hours of work

[215] The Applicant’s current rostered shifts all finish outside the span of ordinary hours if only the hours detailed in clause 27.2(a) are considered. However, clause 27.2(a) details that there is an exception to those hours, provided for in clause 27.2(b).

[216] Coles argued that clause 27.2(b)(iii) applies because it is a retailer whose trading hours extend beyond 9.00 pm Monday to Friday or 6.00 pm on Saturday or Sunday. Accordingly, Coles argued, the finishing time for ordinary hours on all days of the week will be 11.00 pm. The SDA and the AWU also made this argument. It is noted that the AMIEU preferred not to make submissions on the construction of ordinary hours in relation the Applicant’s Sunday shift 60.

[217] It is clear that the Applicant’s Tuesday and Wednesday shifts finish outside the span of ordinary hours whether or not clause 27.2(b)(iii) is applied on a store by store or national basis. Coles, the SDA and the AWU submitted that, given the extension of the finishing time for ordinary hours under clause 27.2(b)(iii), the Applicant’s Sunday shift finished within the span of ordinary hours, that is, it finished before 11:00pm, and therefore did not meet the definition of shiftwork under clause 30.2.

[218] This issue necessitates a determination of whether Coles is a retailer whose trading hours extend beyond 9.00 pm Monday to Friday or 6.00 pm on Saturday or Sunday. This will be relevant for the purposes of comparison and calculations for employees in bringing evidence of their circumstances in the event of termination.

[219] The Applicant submitted that it was appropriate to apply the terms of the Award on a store-by-store basis, and that the relevant trading hours for the purpose of clause 27.2(b)(iii), were those of the Mt Ommaney store, where the Applicant works. The trading hours for the Mt Ommaney store were provided as follows and do not extend beyond 9:00pm Monday to Friday or 6:00pm on Saturday or Sunday:

[220] The Applicant submitted that the interpretation of clause 27.2(b)(iii) with reference to an employee’s place of work (store) would be consistent with local trading hour laws and community expectations and that entitlements should not be lost or benefitted from by other stores’ trading hours.

[221] Coles submitted that the clause should be assessed by reference to Coles as a single employer or retailer, and not on a shop by shop basis. Coles submitted that, as a national retailer, its trading hours generally extend beyond 9:00pm on Monday to Friday and beyond 6:00pm on Saturday or Sunday. Coles relied on an extract of their opening hours printed from their website. The Applicant raised a question that the evidence may not be accurate or up to date, however, I am prepared to accept the extract of trading hours, on the basis that the opening hours of Coles stores across its national operations indicate that Coles trading hours do extend beyond 9:00pm on Monday to Friday and beyond 6:00pm on Saturday and Sunday.

[222] Coles relied on the use of the word “retailer” in clause 27.2(b)(iii) as opposed to “shop”, while other provisions in the Award used the word “shop”. Coles also argued that Mrs Vickers did not lead any evidence or make any submissions in relation to how local trading hour laws impacted on this issue, nor of any community expectations. Coles also relied on clause 27.1 of the Award (which describes the interaction between clause 27 and State or Territory legislated trading hours) and submitted that local trading hours should not have any effect on the interpretation of clause 27 of the Award.

[223] The Fair Work Ombudsman’s advice to the Applicant provides no guidance on the interpretation of whether ‘retailer’ means Coles as a national business or an individual store and therefore does not provide assistance in the interpretation of the ordinary hours exercise in this respect. The FWO’s advice is confined to whether the extension to finishing times for ordinary hours is applied on a day by day basis. Their advice is that the finishing time for ordinary hours is extended to 11:00pm on only the days a retailer trades beyond the hours stated in clause 27.2(b)(iii). This is reflected on their website as follows 61:

[224] It is noted that the Applicant framed her enquiry to the Fair Work Ombudsman in relation to whether the extension to the finishing time of ordinary hours to 11:00pm applied to every day of the week in a situation where a store only traded past the ordinary hours on one day of the week. There was no enquiry made to or confirmation provided by FWO as to whether the Applicant’s views on interpreting clause 27.2(b)(iii) on a store by store basis was correct. It is noted that the FWO, in their advice to the Applicant, instead of ‘store’, used the words ‘retailer’ as used in the Award, and also ‘employer’. Further, in the table above, the word ‘businesses’ is used.

[225] The interpretation of ordinary hours with respect to each individual store’s trading hours raises important considerations in respect of circumstances where individual stores’ trading hours may be altered for a particular time by a Trading Hours order, for example, during extended Christmas trading hours. An employee may not meet the definition of shiftwork for those shifts worked during extended hours, which may have consequences for rostering, considering clause 30.7 and therefore provide uncertainty. I do not consider that clause 27.2(b)(iii) was intended to be applied on a store by store basis, considering the varied operations for retailers the size of Coles. In addition, the distinct use of the word retailer (as opposed to shop or store) supports the conclusion that clause 27.2(b)(iii) is intended to apply to a retailer business as a whole, not an individual shop or store.

[226] Accordingly, it is accepted on the evidence provided that Coles is a ‘retailer’ whose trading hours extend beyond 9:00pm on Monday to Friday or beyond 6:00pm on Saturday or Sunday. Therefore, the finishing time for ordinary hours is extended under clause 27.2(b)(iii) until 11:00pm for every day that Coles’ trading hours extend beyond 9:00pm Monday to Friday or beyond 6:00pm Saturday or Sunday. In Coles’ case, this is every day of the week. The Applicant’s Sunday shift finishes within the span of ordinary hours and therefore does not meet the definition of shiftwork under clause 30.2. This is relevant to the calculations associated with a comparison between the Award and the 2011 Agreement, in relation to the substantive application, and to considerations of clause 30.7 as discussed below.

Clause 30.7

[227] If the 2011 Agreement is terminated and the Applicant’s employment is subject to the Award, the parties then, in reaching agreement as to whether the Applicant is to be specifically employed as a shiftworker or a non-shiftworker, must have regard to clause 30.7 of the Award. This clause provides that rosters of shiftwork cannot be arranged so as to have the shiftworker work both shiftwork and non-shiftwork in the same week.

[228] Given the finding above that the Applicant’s current roster meets the definition of shiftwork in clause 30.2 in respect of the Tuesday and Wednesday shifts, but not the Sunday shift, the Applicant’s current roster would not comply with clause 30.7 of the Award, if she were specifically employed as a shiftworker under the Award.

[229] It is noted that the SDA submitted that clause 30.7 indicated that shiftworkers will be persons employed to exclusively work shiftwork in the same week, and that the Applicant was not employed to exclusively work shiftwork in the same week, and accordingly she could not be a ‘shiftworker’ for the purposes of the Award. The AWU made a similar argument.

[230] However, it has been considered above that to be ‘specifically employed as a shiftworker under the Award’ requires an agreed designation as such. In relation to the operation of clause 30.7, the AMIEU’s explanation is accepted and is as follows:

[231] As set out against clause 30.7, the Applicant’s current roster impermissibly includes shiftwork and non-shiftwork in the same week. Should the Applicant be specifically employed as a shiftworker under the Award in the event that the 2011 Agreement is terminated, there would need to be a willingness on the part of both parties to amend the Applicant’s current roster to comply with clause 30.7.

Comparison

[232] For the purposes of bringing evidence on a commonly understood comparative basis, between the 2011 Agreement and the Award, in order to assess the circumstances of employees, evidence is to be brought in terms of the likely effect that the termination would have.

[233] Accordingly, it is accepted that there would be a range of evidence and calculations in relation to the range of circumstances of employees relevant to this application. For those employees who work a shift or shifts that meet the definition of shiftwork in clause 30.2, where there is no clear likely effect upon termination as to an agreed designation (given that working shifts that meet the definition of shiftwork is not conclusive of being specifically employed as a shiftworker, that a consensual arrangement has to be made, and given any alterations of rosters which would have to occur to satisfy clause 30.7), the evidence should relate to comparisons both as a shiftworker and non-shiftworker under the Award with the 2011 Agreement. This evidence should also include the positions of each party on which is the more likely and preferred designation if the 2011 Agreement was terminated. What is likely and preferred for each party may depend on the total remuneration received under each designation for that employee’s roster, and whether Coles and the employees are able to accommodate changes to rosters if required to satisfy clause 30.7.

[234] However, for those employees who work no shifts that meet the definition of shiftwork under clause 30.2, it is accepted for the purposes of bringing evidence in relation to the substantive matter, that those employees are unlikely to be specifically employed as shiftworkers, and the comparisons should be brought on the basis of a non-shiftworker under the Award against the 2011 Agreement. It is also contemplated that there will be evidence relating to other engagements under the 2011 Agreement and Award.

[235] For the purposes of a calculating the two sets of positions under the Award of both employees specifically employed as a shiftworker and those not, the issue of annual leave, personal/carer’s leave and superannuation must be clarified. With respect to annual leave and personal/carer’s leave, it is accepted that this is an entitlement arising from the NES whereby the leave is accrued according to an employee’s ordinary hours of work, and not according to ordinary hours derived from an industrial instrument (such as those provided in clause 27.2 of the Award). Accordingly, the amount of annual leave and personal carer’s leave accrued should not be affected by an employee’s employment as a shiftworker or a non-shiftworker under the Award, where the same number of that employee’s ordinary hours is worked. However, for those employees who are not specifically employed as shiftworkers, or for employees who are specifically employed as shiftworkers but perform a non-shiftwork shift in their roster, any overtime worked will not attract superannuation.

Conclusion

[236] For clause 30 to apply, the Award requires that an employee must be specifically employed as a shiftworker under the Award as per clause 30.1(a). Specific employment requires an agreed designation or ‘consensual’ arrangement. Merely working shifts that meet the definition of shiftwork under clause 30.2 is not conclusive of specific employment as a shiftworker under the Award. The Applicant was not specifically employed as a shiftworker under the Award. She was employed under a written contract and the 2011 Agreement which did not include shiftwork provisions.

[237] However, the substantive application requires an examination of the Applicant’s circumstances and the likely effect of the termination of the 2011 Agreement. There is no clear likely effect of termination of the Agreement upon the Applicant being specifically employed as a shiftworker or a non-shiftworker under the Award. This will involve an agreement between the parties as to the designation, and an agreed alteration of the Applicant’s roster should the arrangement be that of specific employment as a shiftworker. Accordingly, for those employees who may be specifically engaged as a shiftworker, or not, under the Award (in the event that the 2011 is terminated), such as the Applicant, evidence should be brought that provides a comparison between both of the designations (shiftworker and non-shiftworker) under the Award and the 2011 Agreement and the likely and preferred designation.

[238] The matter will be listed for further Mention for the programming of Directions for the filing of material and hearing dates in respect of the substantive matter. To facilitate the Mention proceedings, each party should have considered the evidence they intend to bring in the substantive application, the time required to collect the evidence, and the form the evidence will take.

al of the Fair Work Commission with member’s signature.

COMMISSIONER

Appearances:

Mrs P. Vickers with Mr A. Truslove, on behalf of the Applicant.

Mr S. Wood QC, with Mr N. Burmeister of counsel, and Ms G. Simmonds of Seyfarth Shaw, on behalf of Coles.

Mr A. Harding of counsel, with Mr C. Mossman of Macpherson Kelly on behalf of the SDA (Federal Branch).

Mr J. Harding on behalf of the AWU.

Mr C. Buckley on behalf of the AMIEU (Federal and Queensland Branches).

Hearing details:

2016.

Brisbane:

5 October.

 1   [2011] FWAA 6105.

 2   MA000004.

 3   PR581624.

 4   Application by Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo [2015] FWCA 4136.

 5   [2016] FWC 5951.

 6   PR581624.

 7   [2016] FWCFB 2887.

 8   Coles’ Submissions on whether Vickers is a Shiftworker under the General Retail Industry Award 2010 at [4].

 9   Witness Statement of Amber Millhouse filed 16 September 2016 at [4].

 10   Affidavit of Penelope Alice Vickers sworn 2 September 2016 at Annexure PAV-18.

 11   Applicant’s submissions filed 2 September 2016 at [30].

 12   Transcript 5 October 2016 PN415 – PN417.

 13   (1996) 66 IR 182 (Madgwick J).

 14   Applicant’s submissions filed 2 September 2016.

 15   Affidavit of Penelope Alice Vickers sworn 2 September 2016 at Annexure PAV-2.

 16   Applicant’s submissions filed 2 September 2016 at [36].

 17   Affidavit of Penelope Alice Vickers sworn 2 September 2016 at Annexure PAV-1.

 18   Affidavit of Penelope Alice Vickers sworn 2 September 2016 at Annexure PAV-8.

 19   Affidavit of Penelope Alice Vickers sworn 2 September 2016 at Annexure PAV–19.

 20   [1993] NSWIRComm 151.

 21   (1987) 22 IR291.

 22   (1987) 22 IR291at 293 – 294.

 23   Superannuation Guarantee Ruling 2009/2, annexure PAV-15 to the Affidavit of Penelope Alice Vickers sworn 2 September 2016.

 24   [2016] FCCA 1481.

 25   [2016] FCCA 1634.

 26   Coles’ Submissions on whether Vickers is a Shiftworker under the General Retail Industry Award 2010 at [8].

 27   Transcript 5 October 2016 PN253-PN257.

 28   [2008] AIRCFB 1000.

 29   City of Wanneroo v ASU (2006) 153 IR 426 at [53] per French J (as his Honour then was) and Australian Nursing and Midwifery Federation v Eastern Health [2013] FCAFC 137 at [11], Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621 at [27].

 30   City of Wanneroo at [52], Polan v Goulburn Valley Health [2016] FCA 440 at [32] applying the decision of Justice Tracey in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd (2014) 318 ALR 54 at [29], Amcor Ltd v CFMEU (2005) 222 CLR 241, Eastern Health at [11] and APESMA v Dendrobium Coal Pty Ltd [2015] FCA 11 at [41]-[42].

 31  City of Wanneroo at [53] approving the observations of the Federal Court in Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 per Burchett J, AMACSU v Treasurer of Commonwealth (1998) 82 FCR 175 and Eastern Health at [11]. See also Zader v Track Moves Australia Pty Ltd [2016] FCAFC 83 at [26] - [27] applying Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 at [22] and [46].

 32   City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379.

 33   Kucks v CSR Limited (1996) 66 IR 182 at 184 per Madgwick J, Australian Workers’ Union v Cleanevent [2015] FCA 1477 at [13] and Polan at [34].

 34   Polan at [34].

 35   Kucks at 184.

 36   City of Wanneroo v Holmes at 380.

 37   Transcript 5 October 2016 PN803-PN807.

 38   Coles’ Submissions on whether Vickers is a Shiftworker under the General Retail Industry Award 2010 at [26].

 39   [2010] FWAFB 305.

 40   [2010] FWAFB 305 at [14].

 41   Transcript 5 October 2016 PN624 – PN626.

 42   [2012] FWA 1197.

 43   Transcript 5 October 2016 PN686 – PN687.

 44   [1993] NSW IRC 91.

 45   (1987) 22 IR 291.

 46   Transcript 5 October 2016 PN665 – PN685.

 47   (1996) 66 IR 182 at 184.

 48   [2005] HCA 10; (2005) 222 CLR 241.

 49   Ibid At [2].

 50   [2006] FCA 813 at [57].

 51   [2015] FCA 1477 at [45].

 52   [2015] FCA 1456.

 53   [2016] FCA 1034.

 54   (1996) 66 IR 182.

 55   Transcript 5 October 2016 PN779 – PN780.

 56   Transcript 5 October 2016 PN764 – PN765.

 57   Transcript 5 October 2016 PN769-PN774.

 58   Transcript 5 October 2016 PN808.

 59   Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 AE888094 at clause 1.4.3.

 60   Transcript 5 October 2016 PN797.

 61   https://www.fairwork.gov.au/employee-entitlements/hours-of-work-breaks-and-rosters/hours-of-work#2146-2150

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