Western Australian Industrial Relations Commission

Employees either work prescribed hours or are shift workers

The Public Service Arbitrator has made a declaration on the interpretation of shift work provisions in the Public Service and General Officers CSA General Agreement 2017 (the Agreement). The applicant brought proceedings under s 46 of the Industrial Relations Act 1979 (WA) seeking a declaration on five questions relating to the issue of whether particular members are shift workers.

The applicant submitted that members working as Intelligence Analysts for the respondent are not shift employees as they do not work in accordance with a shift roster. The applicant argued that a letter sent by the respondent in February 2015 seeking to change the working arrangements of Intelligence Analysts did not comply with the Agreement.

The respondent suggested that there is a distinction between working varied prescribed hours of work and shift work. The respondent argued that by giving notice and invoking the relevant provisions of the Agreement this made the employees shift workers and so the presence of a roster is not required.

The Public Service Arbitrator, Senior Commissioner Kenner, applied the general principles of interpretation and construction when answering the five questions posed by the applicant.

The Public Service Arbitrator declared that:

  1. In the absence of the working of shifts on a roster, an officer is not a shift worker.
  2. An employee can be deemed a shift worker and a day worker without working prescribed shifts which attract a shift allowance but only if the employee agrees in writing. This is because, the Award requires that an officer, as a shift worker, must agree in writing to be kept on day shifts or any other shifts indefinitely that do not attract a shift allowance.
  3. An employee cannot be deemed a shift worker and a day worker without prescribed shifts which attract a shift allowance as it is not permissible to work both the prescribed hours of duty and the varied prescribed hours of duty at the same time.
  4. Employers wishing to vary the prescribed hours of work for an employee need to follow a specific regime for the alteration, including making provision for work to be performed on a shift work basis in accordance with a roster. These specific provisions, outlined in the Agreement, override and displace the general consultation and change provisions in the Agreement.
  5. An employer cannot provide a one-off letter to employees varying their prescribed hours to be both shift employees and employees working their ordinary hours on a weekend or a public holiday. Employers providing a letter of this nature will not eliminate any requirement to give employees one month's notice for any future changes to prescribed hours. This is because, it is not possible to effectively designate employees to be shift workers when they are not working shifts in accordance with a roster. Employees can be working one or the other working hours arrangement, but not both at the same time.

The decision can be read here. 

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