DECISION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Plain language project
(AM2016/15)

4 yearly review of modern awards – plain language project – exposure draft – Clerks Private Sector Award 2010

[1] This decision deals with an issue regarding clauses 22 and 30 in the plain language exposure draft relating to the Clerks —Private Sector Award 2010 (the Clerks PLED).

[2] On 29 August 2019 the Commission received correspondence from Mr Peter Farrell of Haelius Limited raising what he saw as an unintended consequence in the Clerks PLED regarding rest periods after overtime. A copy of Mr Farrell’s correspondence is set out at Attachment A.

[3] A Statement 1 published on 30 August 2019 invited interested parties to file submissions in relation to Mr Farrell’s correspondence, by 4pm on Friday 20 September 2019. Any submissions in reply were to be filed by 4pm on Friday 4 October 2019. The Statement also noted that the Plain Language Full Bench would determine this issue on the papers unless a request for an oral hearing was filed by 4pm Friday 27 September 2019. A submission was filed by Ai Group on 20 September 2019. No other submissions were filed and there was no request for an oral hearing.

[4] As mentioned above, Mr Farrell has raised what is described as an ‘unintended consequence’ arising from the Clerks PLED concerning rest periods after overtime for shiftworkers.

[5] Clause 27.3 of the current Clerks—Private Sector Award 2010 (Clerks Award) is in the following terms:

27.3 Rest period after overtime

(a) When overtime work is necessary it must wherever reasonably practicable, be so arranged that employees have at least 10 consecutive hours off duty between the work of successive days.

(b) An employee (other than a casual employee) who works so much overtime between the termination of the employee’s ordinary work on one day and the commencement of the employee’s ordinary work on the next day that the employee has not had at least 10 consecutive hours off duty between those times must, subject to this clause, be released after completion of such overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(c) If on the instructions of the employer such an employee resumes or continues work without having had such 10 consecutive hours off duty the employee must be paid at double the ordinary time rate of pay until the employee is released from duty for such period and the employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(d) Overtime worked in the circumstances specified in clause 27.4 must not be regarded as overtime for the purpose of this clause.

(e) The provisions of this clause apply in the case of shiftworkers as if eight hours were substituted for 10 hours when overtime is worked:

(i) for the purposes of changing shift rosters;

(ii) where a shiftworker does not report for duty and a day worker or a shiftworker is required to replace such shiftworker; or

(iii) where a shift is worked by arrangement between the employees themselves.

(f) When an employee has not substituted nor banked the rostered day off and therefore works overtime on the rostered day off, the rate of pay must be calculated in accordance with the provisions of clause 27.1. 4.

[6] The Clerks PLED seeks to clarify the separate entitlements currently afforded to shiftworkers and day workers under the Clerks Award by dealing with rest periods after working overtime for these categories of employees separately in clauses 30 and 22 respectively. The approach adopted is intended to make the Clerks PLED simpler and easier to understand by grouping the conditions provided to shiftworkers separately in Part 6.

[7] Clauses 22 and 30 of the Clerks PLED state:

22. Rest period after working overtime (employees other than shiftworkers)

22.1 Clause 22 applies to full-time and part-time employees who are not working shifts.

22.2 When overtime is required to be worked, employees must, wherever reasonably practical, have at least 10 consecutive hours off duty between hours worked on successive days.

22.3 Despite clause 22.2 but subject to clause 22.4, where an employee, due to overtime worked, would be required to start working their ordinary rostered hours without having had 10 consecutive hours off duty:

(a) the employer must release the employee from duty after finishing the overtime until the employee has had 10 consecutive hours off duty; and

(b) the employee must not suffer any loss of pay for any ordinary rostered hours that the employee did not work as a result of being released from duty in accordance with paragraph (a)clause 22.3(a).

22.4 If, at the direction of the employer, an employee continues work or resumes working ordinary rostered hours without having at least 10 consecutive hours off duty in accordance with clause 22.3, then all of the following apply:

(a) the employer must pay the employee at 200% of the employee’s minimum hourly rate until such time as the employee is released from duty; and

(b) the employer must release the employee from duty until the employee has had 10 consecutive hours off duty; and

(c) the employee must not suffer any loss of pay for any ordinary rostered hours that the employee did not work as a result of being released from duty in accordance with paragraph (b)clause 22.4(b).

22.5 Overtime worked in the circumstances specified in clause 21.5—Return to duty must not be regarded as overtime for the purposes of clause 22—Rest period after working overtime (employees other than shiftworkers).

…

30. Rest period after working overtime for shiftwork

30.1 Clause 30 applies to full-time and part-time employees working shifts.

30.2 The provisions of clause 30 apply when overtime is worked in any of the following circumstances:

(a) for the purposes of changing shift rosters; or

(b) where an employee working a shift does not report for duty and another employee is required to work their shift; or

(c) where a shift is worked by arrangement between the employees themselves.

30.3 When overtime is necessary employees must, wherever reasonably practical, have at least 8 consecutive hours off duty between hours worked on successive days.

30.4 Despite clause 30.3, where an employee, due to overtime worked, would be required to start work without having had 8 consecutive hours off duty between finishing one shift of ordinary hours and beginning the next shift of ordinary hours:

(a) the employer must release the employee from duty after finishing the overtime until the employee has had 8 consecutive hours off duty; and

(b) the employee must not suffer any loss of pay for any ordinary hours not worked as a result of being released from duty.

30.5 If, at the direction of the employer, an employee resumes or continues work without having at least 8 consecutive hours off duty in accordance with clause 30.4 all of the following apply:

(a) the employer must pay the employee at 200% of the minimum hourly rate until such time as the employee is released from duty; and

(b) the employer must release the employee from duty until the employee has had 8 consecutive hours off duty; and

(c) the employee must not suffer any loss of pay for any ordinary hours not worked as a result of being released from duty in accordance with clause 30.5(b).

[8] Clause 30 of the Clerks PLED requires that, wherever reasonably practicable, shiftwork employees must have at least eight hours off duty between hours worked on successive days. This clause is only applicable where the circumstances outlined in the clause 30.2(a) – (c) are present. These are equivalent to those described at clause 27.3(e)(i) – (iii) of the current Clerks Award.

[9] Clause 22 of the Clerks PLED, which provides an entitlement to 10 consecutive hours off duty between hours worked on successive days for day workers, does not apply to shiftworkers, as clarified by clause 22.1.

[10] Mr Farrell submits that the Clerks PLED has substantively altered the entitlement to hours off duty for employees performing shifts as currently contained in the Clerks Award. This assertion appears to be grounded on the basis that the current clause 27.3(e) constitutes an exception to a broader entitlement to 10 consecutive hours off duty that would otherwise apply to employees performing shifts as well as day workers. In the course of his correspondence Mr Farrell states:

‘The PLED Clerks Private Sector Award published on 1 March 2019 has separate clauses covering rest periods after overtime. Clause 23 and clause 31 [now clauses 22 and 30 respectively]. Clause 23 [22] is headed rest period after working overtime (employees other than shiftworkers) and clause 31 [30] is headed Rest period after working overtime for shiftwork”.

…

On my reading of these clauses, clause 23 [22] cannot apply to shiftworkers due to the exclusion contained in subclause 23.1 [22.1]. This means that rest periods after overtime for shiftworkers are those described in clause 31 [30] and this is confirmed by sub clause 31.1 [30.1]. Clause 31.2 [30.2] restricts the circumstances in which a shiftworker is entitled to a break after working overtime to the same three circumstances contained in subclause 27.3 (e) of the current award.

For example, if a shiftworker, from the preceding shift, accepted overtime to work the entire next shift because the employer required additional labour on the following shift he or she is working overtime in circumstances other than those described in 31.2 [30.2](a), (b) or (c) and under the clause, as I read it, is not entitled to a break before next reporting for duty. Under the current award clause 27.3 (b) would apply and the employee is entitled to a ten hour break.’

[11] Ai Group submits that the Commission should not amend the Clerks PLED in response to the issues described in Mr. Farrell’s correspondence.

[12] Ai Group disputes Mr Farrell’s contention that the Clerks PLED has substantively altered the entitlement of shiftworkers to a minimum number of consecutive off duty hours. Ai Group submits that the current wording of the Clerks Award only grants an entitlement to 10 consecutive hours off duty between hours worked on successive days to day workers. Shiftworkers are only entitled to a break between work performed on successive days by virtue of clause 27.3(e) in the circumstances described in clause 27.3(e)(i) – (iii). In particular, Ai Group contends that:

‘That the conditions contained in clause 27 (and therefore, clause 27.3) do not generally apply to shiftworkers is clear from the title of the clause: “Overtime rates and penalties (other than shiftworkers)”.

That the provisions of clause 27 were not intended generally to apply to shiftworkers is also made clear by the inclusion of express provisions where this is not the case. For example, clause 28.5 which separately provides overtime for shiftworkers states:

Clause 27.5—Time off instead of payment for overtime and clause 27.6—Make-up time, apply to shiftworkers as well as day workers.

If the conditions contained in clause 27, including 27.3, were to generally apply to shiftworkers, these words would be unnecessary and would have no work to do.

In our view:

•  The PLED clarifies the separate entitlements afforded to day workers and shiftworkers in respect of rest periods after overtime already allowed for in the current Clerks Award. It does not change the legal effect of the award.

•  A change to address the Mr. Farrell’s concerns would result in a substantive change to the legal effect of the Clerks Award.’ 2

[13] Ai Group also submits that it is relevant to note that shiftworkers engaged under the Clerks Award, are protected from requests to more than 10 ordinary hours per day. 3 A further restriction on ordinary hours is imposed in the form of ordinary hours being composed of 6 shifts per week,4 and the Fair Work Act 2009 (Cth) ensures that employees retain a right to refuse to work unreasonable ‘additional hours’, as defined in ss.62(1) and (2).

[14] We agree with Ai Group’s construction of clause 27.3 of the Clerks Award.

[15] Part 5 of the Clerks Award deals with hours of work and related matters for day workers and shiftworkers. The provisions of clause 27 are not intended generally to apply to shiftworkers. So much is clear from the title of the clause. Shiftwork provisions are primarily contained in clause 28 of the Clerks Award. For example:

•  clause 27.2 deals with payment for working Saturdays and Sundays for day workers. The equivalent clause for shiftworkers is found in clause 28.6;

•  clause 26.1 deals with meal breaks, and is expressed as being subject to the provisions of clause 28 (in relation to shiftwork); and

•  clause 28.5 Overtime expressly applies clauses 27.5 Time off instead of payment for overtime and clause 27.6—Make-up time, to shiftworkers.

[16] The operation of clause 27.3 is also extended to shiftworkers, by virtue of and on the terms set out in clause 27.3(e). Pursuant to that clause, overtime work must be arranged wherever reasonably practical so that shiftworkers have at least an eight hour rest period after working overtime, only in the circumstances described in clause 27.3(e)(i) - (iii). In our view, having regard to the language of the Clerks Award when viewed as a whole and the context of the provision, clause 27.3(e) cannot be read as a limited exception to a broader entitlement to a 10 hour rest period for shiftworkers after working overtime. 5

[17] For these reasons, we do not consider that there is any substantive difference between current clause 27.3 of the Clerks Award and clauses 22 and 30 of the Clerks PLED in respect of the minimum hours off duty for day workers and shiftworkers after working overtime.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR715328>

Attachment A

From: Farrell, Peter <Peter.Farrell@healius.com.au>
Sent: Thursday, 29 August 2019 11:36 AM
To: Chambers - Ross J <Chambers.Ross.j@fwc.gov.au>
Subject: Plain language exposure draft—Clerks—Private Sector Award

Dear Justice Ross,

I write regarding what I see as an unintended consequence that arises in the PLED of the Clerks Private Sector Award regarding rest periods after overtime for shiftworkers.

I note that at paragraphs 32 and 256 of the Full Bench Decision [2019] FWCFB 5409 it is stated:

The plain language re-drafting of the following awards is complete:

•  Pharmacy Award; 

•  Clerks Award; 

•  Restaurant Award; 

•  Hospitality Award; 

•  Retail Award; 

•  Security Award 

I have inserted the relevant subclause from the current Award, in italic text immediately below. On my reading of this subclause paragraphs (a), (b), (c), and (d) apply to all employees. That is, day workers and shiftworkers are entitled to a ten hour break as described in these paragraphs. At paragraph (e) the shiftworker’s entitlement to a ten hour break is reduced to eight hours for the three specific circumstances as described in points (i) (ii) and (iii).

Clerks Private Sector Award 2010

27.3 Rest period after overtime

(a) When overtime work is necessary it must wherever reasonably practicable, be so arranged that employees have at least 10 consecutive hours off duty between the work of successive days.

(b) An employee (other than a casual employee) who works so much overtime between the termination of the employee’s ordinary work on one day and the commencement of the employee’s ordinary work on the next day that the employee has not had at least 10 consecutive hours off duty between those times must, subject to this clause, be released after completion of such overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(c) If on the instructions of the employer such an employee resumes or continues work without having had such 10 consecutive hours off duty the employee must be paid at double the ordinary time rate of pay until the employee is released from duty for such period and the employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(d) Overtime worked in the circumstances specified in clause 27.4 must not be regarded as overtime for the purpose of this clause.

(e) The provisions of this clause apply in the case of shiftworkers as if eight hours were substituted for 10 hours when overtime is worked:

(i) for the purposes of changing shift rosters;

(ii) where a shiftworker does not report for duty and a day worker or a shiftworker is required to replace such shiftworker; or

(iii) where a shift is worked by arrangement between the employees themselves.

The PLED Clerks Private Sector Award published on 1 March 2019 has separate clauses covering rest periods after overtime. Clause 23 and clause 31. Clause 23 is headed Rest period after working overtime (employees other than shiftworkers) and clause 31 is headed Rest period after working overtime for shiftwork”. I have inserted clause 23.1 and clause 31 from the exposure draft in italic text below.

On my reading of these clauses, clause 23 cannot apply to shiftworkers due to the exclusion contained in subclause 23.1. This means that rest periods after overtime for shiftworkers are those described in clause 31 and this is confirmed by sub clause 31.1. Clause 31.2 restricts the circumstances in which a shiftworker is entitled to a break after working overtime to the same three circumstances contained in subclause 27.3 (e) of the current award.

For example, if a shiftworker, from the preceding shift, accepted overtime to work the entire next shift because the employer required additional labour on the following shift he or she is working overtime in circumstances other than those described in 31.2 (a), (b) or (c) and under the clause, as I read it, is not entitled to a break before next reporting for duty. Under the current award clause 27.3 (b) would apply and the employee is entitled to a ten hour break.

Plain language exposure draft—Clerks—Private Sector Award 20XX

23.1 Clause 23 applies to full-time and part-time employees who are not working shifts.

31 Rest period after working overtime for shiftwork

31.1 Clause 31 applies to full-time and part-time employees working shifts.

31.2 The provisions of clause 31 apply when overtime is worked in any of the following circumstances:

(a) for the purposes of changing shift rosters; or

(b) where an employee working a shift does not report for duty and another employee is required to work their shift; or

(c) where a shift is worked by arrangement between the employees themselves.

31.3 When overtime is necessary employees must, wherever reasonably practical, have at least 8 consecutive hours off duty between hours worked on successive days.

31.4 Despite clause 31.3, where an employee, due to overtime worked, would be required to start work without having had 8 consecutive hours off duty between finishing one shift of ordinary hours and beginning the next shift of ordinary hours:

(a) the employer must release the employee from duty after finishing the overtime until the employee has had 8 consecutive hours off duty; and

(b) the employee must not suffer any loss of pay for any ordinary hours not worked as a result of being released from duty.

31.5 If, at the direction of the employer, an employee resumes or continues work without having at least 8 consecutive hours off duty in accordance with clause 31.4 all of the following apply:

(a) the employer must pay the employee at 200% of the minimum hourly rate until such time as the employee is released from duty; and

(b) the employer must release the employee from duty until the employee has had 8 consecutive hours off duty; and

(c) the employee must not suffer any loss of pay for any ordinary hours not worked as a result of being released from duty in accordance with paragraph (b).

Please ignore this email if there is a further draft of the PLED Clerks Private Sector Award that has addressed this issue.

Regards
Peter Farrell
Senior HR Advisor Workforce Management
People and Employment Law, Corporate
Healius Limited

+61 (0) 466 550 622
+61 (0) 2 9432 9438

Level 6 203 Pacific Highway
St Leonards NSW 2065

Peter.Farrell@healius.com.au
www.healius.com.au

 1   [2019] FWC 6058

 2   Ai Group submission, 20 September 2019 at [9]-[12]

 3   Clerks —Private Sector Award 2010 cl. 28.3

 4   Clerks —Private Sector Award 2010 cl.28.4(a)

 5   In the High Court decision of Project Blue Sky Inc v Australian Broadcasting Authority 33 (1998) 194 CLR 355 at 381 – 382 at [69], the plurality (McHugh, Gummow, Kirby and Hayne JJ) stated:

‘the meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.” In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.’