2023 WAIRC 00054
CONTRACTUAL BENEFIT CLAIM
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00054

CORAM
: COMMISSIONER C TSANG

HEARD
:
WEDNESDAY, 27 JULY 2022

DELIVERED : WEDNESDAY, 1 FEBRUARY 2023

FILE NO. : B 6 OF 2021

BETWEEN
:
ASHLEY STEWART
Applicant

AND

UGL OPERATIONS & MAINTENANCE PTY LTD
Respondent

CatchWords : Industrial law WA - Contractual benefit claim - Overcycle payment - Additional days worked - Operational requirements - COVID-19 - Rest and recreation - Discretion to change roster - Flexibility clauses - Applicant did not comply with processes - No finding of denied contractual benefit
Legislation : Industrial Relations Act 1979 (WA) s 7, s 29(1)(d)
Result : Order issued
REPRESENTATION:

APPLICANT : MR L EDMONDS (OF COUNSEL)
RESPONDENT : MR N ELLERY AND MS A WHYTE (OF COUNSEL)

Case(s) referred to in reasons:
Belo Fisheries v Froggett (1983) 63 WAIG 2394
Byrne & Frew v Australian Airlines Ltd [1995] HCA 24
Chevron (Tapl) Pty Ltd v Pilbara Iron Co (Services) Pty Ltd [2021] WASCA 193
Hotcopper Australia Ltd v Saab [2001] WAIRC 03827; (2001) 81 WAIG 2704
Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186
Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307
ROHAN V S&DH ENTERPRISES PTY LTD [2022] WAIRC 00196; (2022) 102 WAIG 347
Simons v Business Computers International Pty Ltd (1985) 65 WAIG 2039
Waroona Contracting v Usher (1984) 64 WAIG 1500

Reasons for Decision

1 This application is made pursuant to s 29(1)(d) of the Industrial Relations Act 1979 (WA) (Act) in relation to which the applicant claims that he has been denied a contractual benefit by way of non-payment for overcycle worked under his contract of employment. The applicant claims the sum of $7,093.80 being the value of the contractual benefit to which he was denied.
2 There is no dispute that the applicant’s claim is an industrial matter, that the applicant was at the relevant time an employee of the respondent, and that a written contract of employment dated 23 June 2017 governed the terms and conditions of the applicant’s employment with the respondent (Contract). The Contract consists of the Employment Schedule and the Standard Employment Terms (SET).
3 The applicant claims the entitlement arises out of clause 5 and part of clause 7 of the Employment Schedule (Hours of Work Clause and Overcycle Clause, respectively), which states:
5. Hours of Work
A. Ordinary Hours of Work
Your ordinary hours of work are 38 hours per week, averaged over a 26-week period (your “normal hours”). Your normal hours are to be worked during the Company’s normal business hours (which may vary from time to time).
In addition to your normal hours you are required to work such reasonable additional hours as are necessary for the performance of your duties.
If you are required to work onsite in accordance with the site roster cycle your initial roster will be based on a 4-week block consisting of two (2) weeks of work (at a nominal 12 hours per day) followed by two (2) weeks of rest and recreation leave.
If you are required to work in the Perth office you will be required to work your 38 ordinary hours in normal business hours plus any reasonable additional hours (including Nights/Weekends/Public Holidays).
7. Allowances and other benefits (clause [9] of SET)
A. Allowances
Overcycle
i. Site-based Employees
When you first commence employment on the Project, you will be required to undertake inductions and training in Perth prior to mobilising to site and working the site roster. This initial period of employment forms part of your ordinary hours and is not considered to be overcycle work. Once you mobilise to site and commence working the site roster, you may be required to work additional days beyond your 14 day work cycle to meet operational requirements or to complete additional required training. These additional work days may be performed on site or in Perth. Superannuation is not paid on additional days worked as it does not form part of your ordinary time earnings.
All overcycle days worked must be approved by the relevant UGL Manager and/or Chevron Coordinator in order for these days to be paid.
All overcycle days worked in any given month will be processed and paid in the following month’s pay cycle. You must submit an approved Overcycle Payment Request Form to your Cost Administrator no later than the first day of the month following the overcycle work.
You will be compensated for any approved additional days worked at the day rate specified in the table below.
Site-based Personnel - Overcycle Calculation for Site Work

Comments
Total Annual Earning
$
170,266.05
Base + Uplift (working full 12 months)
Earnings per 4 week cycle
$
13,097.39
Base + Uplift/13 cycles
Monthly Salary (per payslip)
$
14,188.84
Annual Earnings/ 12 months
Monthly Hours (per payslip)

164.67
notional rostered hours 38 x 4.333 weeks
Normal rostered daily rate
$
467.76
paid for all 28 days incl. R&R
Overcycle daily rate (if NO R&R taken)
$
935.53
Cycle salary / 14 days on site

Site-based Personnel - Overcycle Calculation for Perth work

Comments
Annual Salary
$
126,123.00
Base only (no uplift for off-site)
Number of hours per annum

1,976
“annual hours = 52x38”
Effective rate per hour
$
63.83

Off-site overcycle rate per day
$
485.09
7.6 hours per day

4 The respondent submits that:
(a) the applicant was not entitled to the benefit of the overcycle payment because the work performed was not overcycle work;
(b) the applicant does not meet the other elements prescribed by the Contract for the overcycle payment to apply; and
(c) in any event, the applicant was not underpaid compared to his contractual entitlements.
The applicant’s contentions
5 The applicant submits that the Contract had an effective start date of 1 July 2017 and applied to his employment subject to the wage increases in the respondent’s witnesses’ evidence that increased the overcycle daily rate to $1,013.40.
6 The applicant claims the sum of $7,093.80 under the Contract, in payment for overcycle work he submits arises under the Hours of Work Clause and the Overcycle Clause.
7 The applicant submits that he mobilised to site one day earlier due to COVID-19 and commenced his usual 14-day roster cycle on 8 April 2020. He submits that upon arriving on site, he was told by the Offshore Installation Manager (OIM) that he would be staying on site for 28 days instead of 14 days.
8 The applicant submits that his 14-day work cycle ordinarily ended on 21 April 2020, but as the respondent required him to work an additional 14 days due to operational requirements, he was not relieved from duty until 6 May 2020. As such, the applicant submits that the extended swing, from the 14 days to 28 days, gives rise to an entitlement to overcycle pay for the additional 14 days worked.
9 The applicant submits that the overcycle daily rate of $935.53 per day was set out in the table in the Overcycle Clause at paragraph [3] above (the Overcycle Clause Table). However, at the relevant time this had increased to $1,013.40.
10 The applicant submits that he should have been paid the overcycle rate of $1,013.40 for each of the additional 14 days. The applicant was paid the normal rostered daily rate of $506.70 per day for each of these days. As a result, the applicant submits that he sustained a loss of $506.70 a day, totalling $7,093.80.
11 The applicant submits that the following provision in the Hours of Work Clause supports the submission that the applicant is contracted to work two weeks on site:
If you are required to work onsite in accordance with the site roster cycle your initial roster will be based on a 4-week block consisting of two (2) weeks of work (at a nominal 12 hours per day) followed by two (2) weeks of rest and recreation leave.
12 The applicant submits that the following provision in the Overcycle Clause is pivotal in creating an entitlement to the overcycle rate:
Once you mobilise to site and commence working the site roster, you may be required to work additional days beyond your 14 day work cycle to meet operational requirements or to complete additional required training.
13 The applicant submits that each day beyond the 14-day work cycle is an overcycle day and therefore provides him with an entitlement to the overcycle rate.
14 The applicant submits that there is no term in the Contract that envisages that the respondent retains the discretion to alter the roster as required. The applicant submits that the Contract itself points to a 14-day roster as being the site roster. The applicant relies on:
(a) The Hours of Work Clause which refers to a four-week block consisting of two weeks of work, namely 14 days at a nominal 12 hours per day, followed by two weeks of rest and recreation leave (R&R);
(b) The Overcycle Clause which refers to working additional days beyond the 14-day work cycle to meet operational requirements;
(c) The Overcycle Clause Table which refers to ‘Earnings per 4 week cycle’ and the roster itself comprising a four-week cycle with two weeks on and two weeks off;
(d) The Overcycle Clause Table which refers to ‘Base + Uplift’ divided by 13 cycles, which the applicant submits results in the ‘Earnings per 4 week cycle’. The applicant submits that if the roster was not a four-week cycle with two weeks on and two weeks off, of which there are 13 fourweek cycles across the year, then this aspect of the Overcycle Clause Table would not make sense because there would not be 13 cycles in a year. The applicant provides the example that if the roster cycle was an eight-week cycle, there would then be sixand-a-half cycles across the year;
(e) The Overcycle Clause Table which refers to ‘Monthly Hours (per payslip)’ which refers to the ‘notional rostered hours’ of 38 hours per week multiplied by 4.33 weeks. The applicant submits that this equates to a four-week cycle;
(f) The Overcycle Clause Table which refers to ‘Normal rostered daily rate’ and the content in the comments section that this is ‘paid for all 28 days incl. R&R’. The applicant submits that this is a reference to a 28-day cycle including R&R;
(g) The Overcycle Clause Table which refers to ‘Overcycle daily rate (if NO R&R taken)’ and the content in the comments section to the ‘Cycle salary’ and the reference to ‘14 days on site’;
(h) The Flights and Accommodation clause and the reference to ‘You will ordinarily fly to site on the morning of the first day of your fourteen (14) day work cycle and depart site to commence your period of R&R at the end of your shift on day fourteen (14) or on day fifteen (15).’ The applicant submits that this provision refers to a 14-day work cycle, with the applicant departing on day 14 or day 15 of the cycle; and
(i) The Flexible Working Hours clause and the reference to ‘Roster patterns and annual leave may change to suit major maintenance events such as shut downs.’ The applicant submits that this provision is not inconsistent with his interpretation. He may be required to work during a shut down, but that work would attract the overcycle payments in the ordinary course of events for every day beyond the 14 days.
15 The applicant submits that if the Contract did provide a right for the respondent to change the roster at its discretion, that such a right is conditioned by the Overcycle Clause and the reference to ‘Once you mobilise to site and commence working the site roster, you may be required to work additional days beyond your 14-day work cycle.’ The applicant submits that the Overcycle Clause clarifies that a roster change cannot occur once he has mobilised to site and commenced working. He reasons that once he had commenced working his site roster, which on the days in question was a 14-day work cycle, there was no capacity to amend the roster beyond that, other than to pay the overcycle rate.
16 The applicant submits that any right said to be implied in the Contract enabling the respondent to change the roster, must be implied to be consistent with the provisions of the Hydrocarbons Industry (Upstream) Award 2020 (Award). If the Award terms have not been complied with, then the roster cannot change and the entitlement to the overcycle rate arises.
17 The applicant relies upon clause 32 of the Award titled ‘Consultation about changes to rosters or hours of work’ which requires the respondent to consult with the applicant about changes to his roster or hours of work. The applicant also refers to clause 14.1 of the Award titled ‘Rosters’, which requires the respondent to provide two days’ notice of a variation to an employee’s start and finish times, or days of work, to meet the needs of the business.
18 The applicant submits that the flexibility provisions in the Hours of Work Clause that ‘Your normal hours are to worked … which may vary from time to time’, and within the Flexible Working Hours clause that ‘You are required to remain flexible in order to meet the operational requirements’ and that ‘Roster patterns and annual leave may change to suit major maintenance events such as shut downs’, should be read in context. The applicant submits that the change to the applicant’s roster was not a result of a major maintenance event. The cause of the change to the applicant’s roster was COVID-19 and the Contract does not contemplate a change to the roster for that reason. He submits that whilst the Contract contemplates a change to the roster for major maintenance events, these flexibility provisions should not be read to contradict the other clauses’ plain meaning.
19 The applicant submits that the flexibility clauses should be read in a way that is consistent with clauses 32 and 14.1 of the Award. The applicant submits that whilst there is an obligation on the applicant to be flexible, when he works additional days in compliance with the obligation to be flexible, he is entitled to be paid double time for the additional days worked through the entitlement to the overcycle rate.
20 The applicant agrees that the Contract provides that he is required to work reasonable additional hours, but submits that those hours need to be reasonable and there is no express obligation to work additional days.
21 The applicant submits that it would be absurd if the respondent could compel him to work an additional 14 days and assert that these days are not overcycle days.
22 The applicant submits that the approval to work overcycle days in the Overcycle Clause that ‘All overcycle days worked must be approved by the relevant UGL Manager and/or Chevron Coordinator in order for these days to be paid’ can be given expressly or impliedly. The applicant submits that the OIM from Chevron gave him express approval to work overcycle, when he was told he would be working at least 28 days and would not be flown off the rig earlier.
23 The applicant submits that where the only means of being flown off the rig was by helicopter, that was not arranged by him, he had no choice but to work the additional 14 days when he was required to do so. The applicant submits that the approval to work the overcycle days arises from the respondent’s compulsion of him to work the additional 14 days.
24 The applicant relies upon his witness statement filed on the morning of the hearing, which annexed emails that he sent on 19 and 20 April 2020. In these emails, the applicant summarises his discussions with Bill Walker (the respondent’s Senior Project Engineer) and Melanie Covich (the respondent’s Human Resources Manager), which the applicant says is evidence that he made a claim, through the telephone discussions and emails sent to the management of the respondent to be paid the overcycle rate for the additional 14 days that he worked.
25 The applicant submits that the reference in the Overcycle Clause Table that ‘Overcycle daily rate (if NO R&R taken)’ should not be read as meaning there is no obligation to pay the overcycle rate if there is an equivalent amount of R&R taken after he worked the additional days. The applicant submits that the words ‘if NO R&R taken’ cannot override the plain and ordinary meaning of the balance of the Contract.
26 In relation to the words ‘initial roster’ in the Hours of Work Clause, the applicant submits that even if the words imply that the initial roster can be changed, there are no provisions in the Contract regarding how the roster change is to occur, except in the circumstances set out under the Flexible Working Hours clause. Absent the Contract setting out how the rosters can change, the applicant submits that any changes to the roster need to be read consistently with the Overcycle Clause. The applicant submits that it is inconsistent with the Contract and with the surrounding documents, including the Award that requires consultation, that the Contract provides the respondent with a right to change his roster.
27 The applicant submits that it would be an absurd reading of the Contract to say that the respondent reserves the discretion to change his roster once he has arrived on the platform and he has no say in his varied roster.
28 The applicant submits that the OIM from Chevron changed his roster and there is no evidence that if the roster changed, who from the respondent changed the roster, how they changed the roster, and when they changed the roster. In contrast, the applicant submits that the Contract provides that if he is required to work more than 14 days, he is entitled to be paid the overcycle rate.
29 The applicant agrees that the respondent can request flexible working hours and can request that he work additional time, and that roster patterns and annual leave may change. However, he submits that this does not come at the expense of the Overcycle Clause which creates an obligation on the respondent to pay him the overcycle rate in those circumstances, especially for major maintenance events such as shut downs. The applicant submits that it is not open to the respondent to avoid a payment for overcycle simply by declining to approve it.
30 The applicant submits that if he did not work the additional 14 days as requested, he would be in breach of the requirement to remain flexible. The applicant submits that he has met his obligations under the Contract to remain flexible.
31 The applicant agrees that the respondent did not approve the overcycle, but submits that it is also clear that he sought for the overcycle to be approved. The applicant submits that whilst he worked the additional days, he did so in circumstances where he was continuing to dispute the nature of the additional 14 days and continuing to seek the overcycle rate for those days. The applicant submits that a failure to submit an Overcycle Payment Request Form does not disentitle him from being paid the overcycle rate, especially in circumstances where he raised the issue as a dispute at the time.
32 In relation to clause 4.2 of the SET, the applicant submits that he is not claiming overtime. Rather, he is claiming the overcycle payment, which is not an overtime payment but an additional day payment for working over and above the roster that he had arrived at the work site to work. The applicant submits that once he arrived at the work site, the respondent was able to vary his roster but only consistent with the Overcycle Clause.
33 The applicant submits that giving him 28 days of R&R as opposed to his normal 14 days of R&R and then bringing him back to site after that, does not mean the respondent can ignore the Overcycle Clause.
34 In relation to clause 8.2 of the SET, the applicant submits that the practice of the parties has been to pay $1,013.40 for overcycle payments, which amounts to a variation of the contractual rate in the Contract by the conduct of the parties. In the alternative, if the Contract overcycle daily rate is to be applied, then the applicant submits that the financial loss is the difference between the Contract rate of $935.53 and the amount paid of $506.70 for the 14 days, totalling $6,003.62.
The applicant’s evidence
35 The applicant gave evidence that:
(a) The respondent employed him as a helideck operator on the Chevron Wheatstone platform;
(b) His terms and conditions of employment are set out in the Contract;
(c) His ordinary roster cycle was 14 days on duty followed by a period of 14 days off duty;
(d) For the swing the subject to this application, he was initially supposed to return to work on 9 April 2020;
(e) He was contacted on 6 April 2020 and advised that due to uncertainty with COVID19 and flight schedules, he would be required to mobilise to the Wheatstone platform a day earlier than expected to align with flight schedules;
(f) He arrived on the Wheatstone platform on 8 April 2020 and, shortly after his arrival, the OIM from Chevron advised that his swing would be four weeks at a minimum and may even be longer;
(g) This was the first time he learnt about the change to his roster. He received no correspondence from the respondent’s management. He was aware the respondent had circulated a memorandum to employees engaged on the Gorgon Project on Barrow Island, but this did not apply to him on the Wheatstone platform;
(h) On 9 April 2020, he completed an Overcycle Payment Request Form to be paid the overcycle rate for 8 April 2020 as he had returned to work a day early. This was a normal practice when returning to work early or leaving the platform later than the roster provided. While he had been advised that his early return to work was due to a need to align flight schedules, when he completed the Overcycle Payment Request Form the Site Services Coordinator, his direct supervisor on the platform, who is a Chevron employee, advised him that the need for the early return was to align to a new four weeks on/four weeks off roster, and this is what he wrote on the Overcycle Payment Request Form as the reason for the overcycle;
(i) As he commenced an on-duty period on 8 April 2020, his 14-day work cycle would have ordinarily concluded on 21 April 2020;
(j) The respondent requested that he continue to work until 5 May 2020, meaning he was required to work for an additional 14 days beyond his 14-day work cycle;
(k) In this swing, he worked 12 hours per day for the whole 28-day period and was not relieved from duty until 6 May 2020;
(l) For the days worked between 22 April and 5 May 2020, the Contract entitled him to the payment of the overcycle rate per day;
(m) As a result of the respondent denying him the overcycle rate, he has suffered a loss;
(n) The impact of being required to stay on the platform and continue to work for a period that is double the length of his normal swing was stressful for both himself and his family;
(o) One of the ways the difficulty of extended swings is overcome is the payment of the overcycle rate. The additional pay allows him to make arrangements to allow for short notice care for his children and to rearrange his affairs; and
(p) Soon after arriving on the platform, he emailed the respondent’s Human Resources to find out what the situation was with respect to his roster. He received no response until a telephone call was organised with Mr Walker on or about 16 April 2020. On or about 20 April 2020, the applicant spoke with Ms Covich and she advised that the respondent was unwilling to pay overcycle payments for the additional 14 days on the platform.
The respondent’s contentions
36 The respondent agrees that the terms of the Contract govern the applicant’s employment and that the applicant’s employment with the respondent commenced on 1 July 2017.
37 The respondent denies that the applicant is entitled to the benefit of the overcycle payment on three grounds.
38 Firstly, the respondent submits that the work performed by the applicant was not overcycle work. The respondent submits that it temporarily changed the roster cycle in accordance with the provisions of the Contract, such that the applicant worked a different roster cycle to his usual 14 days on/14 days off pattern, and the varied roster cycle for the period in question was 28 days on/28 days off. The respondent submits that the applicant’s ‘usual hours of work’ were varied, which had a consequential impact on what hours would be considered overcycle. The respondent submits that the Contract clearly provided for the respondent to vary the applicant’s roster at its discretion, and it did so to extend both the applicant’s work cycle and the R&R period in response to changes requested by its client as a result of COVID-19.
39 The respondent submits that the Overcycle Clause provides for the following elements to be satisfied in order for work performed to attract the overcycle rate:
(a) The work must occur on additional days over and above the rostered work cycle. While the Contract envisages an initial 14 days on/14 days off cycle, it is readily apparent from the surrounding terms of the Contract that the respondent maintained discretion to alter that roster as required;
(b) Overcycle days worked must be approved by the relevant UGL Manager and/or Chevron Coordinator in order for these days to be paid as overcycle; and
(c) The Overcycle daily rate would only apply if no R&R was taken.
40 The respondent submits that the purpose of the reference to the overcycle rate in the Overcycle Clause Table is to illustrate that the calculation of the daily rate of pay for overcycle includes consideration for the site uplift
41 The respondent submits that the Overcycle Clause Table specifies that the rate is conditional on no R&R being taken. The respondent submits that the reference to ‘if NO R&R taken’ reinforces that overcycle is time worked, which displaces time otherwise rostered off.
42 The respondent relies on the provision of the Hours of Work Clause that ‘If you are required to work onsite in accordance with the site roster cycle your initial roster will be based on a 4week block consisting of two (2) weeks of work (at a nominal 12 hours per day) followed by two (2) weeks of rest and recreation leave’ as providing the respondent with a contractual entitlement to change the applicant’s roster. The respondent submits that the reference to an ‘initial roster’ clearly infers that the roster cycle may change.
43 The respondent also relies upon the following clauses of the Contract, which the respondent submits that when taken together makes clear that the Contract contemplates and provides for the respondent to make changes to the applicant’s roster cycle:
(a) The Working Hours Clause which states that ‘Your ordinary hours of work are 38 hours per week, averaged over a 26-week period (your ‘normal hours’). Your normal hours are to be worked during the Company’s normal business hours (which may vary from time to time)’;
(b) The Flexible Working Hours clause which states that ‘You are required to remain flexible in order to meet operational requirements. This flexibility includes but is not limited to the following’; and
(c) The Flexible Working Hours clause which states that ‘Roster patterns and annual leave may change to suit major maintenance events such as shut downs’.
44 In relation to the Working Hours Clause, the respondent submits that the words ‘which may vary from time to time’ must be given something to do. The respondent submits that the critical and only logical conclusion that can be drawn from these words is that the Contract provides that the applicant’s ordinary hours of work can vary.
45 The respondent submits that the Working Hours Clause provides that ‘In addition to your normal hours you are required to work such reasonable additional hours as are necessary…’ which is an express agreement stated between the parties that there may be a requirement to work reasonable additional hours.
46 The respondent submits that the reference to ‘initial roster’ in the Working Hours Clause that ‘If you are required to work onsite in accordance with the site roster cycle your initial roster…’ provides that the roster may change. The respondent submits that the word ‘initial’ means exactly that, and that is the initial roster that the parties envisaged at the time, and the use of the word in the Contract shows that it was clearly understood and agreed between the parties that the roster may change. The respondent submits that the words ‘initial roster’ have a purpose: to describe the initial roster and contemplate that the roster might change.
47 The respondent submits that the words in the Overcycle Clause Table that ‘Normal rostered daily rate’ of ‘$467.76’ and the comment ‘paid for all 28 days incl. R&R’ indicates the rate that was contractually agreed and is the rate for all days of a cycle including R&R. The respondent submits that the parties agreed for the applicant to work even time, where the applicant worked an even amount of time and was paid the same rate on the days he worked and on the days he did not work. The respondent submits that this is separate to annual leave, which is not taken into account in the arrangement as R&R is not annual leave, and annual leave is a separate and additional entitlement. The respondent submits that the even time concept provides for the applicant to be paid the rate of $467.76 for every day of the cycle, including the days he did not work because he was on R&R.
48 The respondent submits that the words in the Overcycle Clause Table that ‘Overcycle daily rate (if NO R&R taken)’ with the double rate of $935.53 makes plain that the rate of $935.53 is what the applicant would receive if he did not get R&R. The respondent submits that at the relevant time, the applicant worked for 28 days, then had 28 days of R&R, for which he was paid. The respondent submits that the applicant is not entitled to the overcycle rate for the days in dispute because the clause only entitles the applicant to the overcycle rate if no R&R is taken, and the applicant took R&R.
49 The respondent submits that the word ‘ordinarily’ in the Flights and Accommodation clause that ‘You will ordinarily fly to site on the morning of the first day of your fourteen (14) day work cycle’ contemplates that there will be times when the applicant will do something different. The respondent submits that the clause provides the ordinary arrangement but contemplates that there will be other arrangements from time to time.
50 In relation to the Flexible Working Hours clause, the respondent submits that the words ‘not limited to the following’ in the clause that ‘You are required to remain flexible in order to meet operational requirements. This flexibility includes but is not limited to the following:’ and followed by sub-paragraphs (a) to (f), indicates the parties turned their minds to and agreed that there will be circumstances where there would be flexibility beyond and outside the matters in sub-paragraphs (a) to (f).
51 The respondent submits that sub-paragraph (c) of the Flexible Working Hours clause that ‘Roster patterns and annual leave may change to suit major maintenance events such as shut downs’ does not apply as there was not a major maintenance event because the respondent required the applicant to vary his roster pattern due to COVID-19 issues with travel. The respondent submits that the Flexible Working Hours clause shows that the parties turned their mind to the fact that there might be flexibility changes for a range of reasons, and whilst the parties had not turned their minds to COVID-19, the clause provides for changes for a range of reasons not limited to the matters stated at sub-paragraphs (a) to (f).
52 The respondent submits that clause 4.2 of the SET:
Your Total Fixed Remuneration has been set at a level that takes into account your normal duties and any reasonable additional hours you may be required to work. This may include working additional hours during weekdays, weekends or public holidays. The Company has had regard for these requirements in determining your salary, i.e. you agree that your remuneration is inclusive of all hours you work and that you will not be paid overtime for hours worked in excess if [sic] your normal hours. You acknowledge and agree that having regard to the nature of your position, the operational requirements of the Company and your salary, such additional hours are reasonable.
shows that the parties agreed that there would not be overtime because the parties had agreed on a rate the applicant would be paid that takes into account additional hours that might be required. The respondent submits that the Contract provides flexibility resulting in additional hours being worked from time to time, which are compensated for in the rate of pay set. The respondent submits that the Contract sets a separate specific entitlement for overcycle work, which arises in the specific circumstances provided for in the Contract, which did not arise for the days in dispute.
53 The respondent submits that the applicant’s revised work cycle, confirmed with the applicant prior to the commencement of the revised arrangements, included a rostered off period of 28 days which immediately followed the 28 days rostered on.
54 The respondent submits that whilst the applicant’s initial roster was 14 days on/14 days off, from on or about 8 April 2020, as a consequence of the restrictions in relation to COVID19, the respondent advised employees that flights to and from site would be restricted and as a consequence required employees on the site to temporarily move to a four on/four off roster. The respondent submits that this meant the applicant would work 28 days on/28 days off instead of 14 days on/14 days off. The respondent submits that this arrangement was expected to be for about three cycles, however, the arrangement was in place for only two cycles before flights to site returned to the prior frequency.
55 The respondent submits that during the period that the site roster cycle was varied to four weeks on/four weeks off:
(a) Total hours rostered on did not change;
(b) Total hours rostered off did not change;
(c) The roster remained even time, i.e. the same number of days worked as the number of days rostered off;
(d) Due to fewer roster cycles, commuting time for employees was significantly reduced; and
(e) Pay arrangements (frequency of pay and rate of remuneration) did not change.
56 The respondent submits that overcycle work is time worked over the cycle. During the period in question, the cycle was 28 days on/28 days off. The respondent submits that this meant that any additional time worked over the period rostered on results in a corresponding reduction in time rostered off in that cycle. The respondent provides an example that if during a 28 days on/28 days off roster, an employee works for 29 days, they would have 27 days rostered off in that cycle.
57 Secondly, the respondent submits that the applicant did not meet the other elements prescribed by the Contract for the overcycle payment to apply. The respondent submits that the Overcycle Clause requires ‘All overcycle days worked must be approved’ by the relevant manager, and the 14 days in dispute were not approved as overcycle, and the applicant did not seek and was not granted any approval for working overcycle days in the period from 22 April to 5 May 2020. As a consequence, the applicant has not satisfied the preconditions for the contractual benefit of an overcycle payment.
58 The respondent submits that the Overcycle Clause requires that an overcycle day must be approved to be an overcycle day. The respondent submits that this is further emphasised by the word ‘must’ in the clause that ‘You must submit an approved Overcycle Payment Request Form to your Cost Administrator’. The respondent submits that the Overcycle Clause provides a time for the Overcycle Payment Request Form to be submitted following the overcycle work and the applicant did not submit an Overcycle Payment Request Form. The respondent submits that the applicant expressed a desire or a wish for the time to be regarded as overcycle, but he did not submit an Overcycle Payment Request Form at any time for the relevant days in question. The respondent submits that the applicant had used the process to submit Overcycle Payment Request Forms for the prior periods of his employment. The respondent submits that the words ‘You must submit an approved’ form are critical words in the Contract.
59 Thirdly, the respondent submits that the applicant has not been underpaid compared to his contractual entitlements. The respondent submits that the applicant has not suffered any financial loss because the respondent has paid the applicant amounts above what he is entitled to under the Contract.
60 The respondent relies upon the Performance and Total Fixed Remuneration Reviews clause of the SET that entitles the applicant to remuneration reviews and on clause 8.2 of the SET that ‘Any increase in your Total Fixed Remuneration under this clause will: (1) not amount to a variation of the Agreement’ in support of the contention that the applicant’s overcycle rate changed from $935.53 to $1,013.40, which was the rate that the applicant was being paid in practice, but the varied amount was not the applicant’s contractual rate of pay. The respondent submits that the applicant’s contractual rate of pay is that set out in the Contract.
61 The respondent submits that the Contract provides that the overcycle daily rate is $935.53 per day, whilst the applicant was paid at the rate of $1,013.40 per day, being an amount in excess of his contractual entitlement. The respondent submits that the applicant regularly worked overcycle, and in the period between January 2020 and December 2021, the applicant worked overcycle on 16 occasions, for which he was paid $1,013.40 per day, which represents an additional payment of $77.95 per day.
62 The respondent submits that given the applicant had been rostered to work for approximately 500 days, the overpayment amounts to $38,975. The respondent submits that the applicant also received discretionary payments of three hours travel pay of approximately $253.35 per swing on an estimated minimum of 50 occasions, totalling $12,668.
63 The respondent submits that these discretionary payments, totalling over $50,000, should be taken into consideration when considering the applicant’s application.
64 The respondent submits that whether or not the Award and the consultation obligations therein were complied with is not relevant to the applicant’s application. The respondent submits that the Award has no relevance to the operation of the Hours of Work Clause and the Overcycle Clause. The respondent submits that there is no basis to imply or be informed by the Award terms in interpreting the Contract.
65 The respondent submits that the fact that the Contract does not define in detail how and when the applicant’s roster changes are irrelevant as the applicant’s roster did change. The applicant worked the changed roster; he then had 28 days R&R, which he was paid for.
66 The respondent submits that in the relevant period the applicant worked the days requested in circumstances where he was informed he would not receive the overcycle daily rate, which the respondent submits indicates that the applicant accepted and understood that he would not receive the overcycle daily rate for any of the 28 days that he worked.
The respondent’s evidence
67 The applicant raised objections to some of the respondent’s evidence. Having heard from counsel in relation to these matters, I indicated that I would consider the objections raised as matters of weight. Where evidence may generally infringe principles applicable to evidence, then little weight would be accorded to it.
68 Mr Aaron Lake gave evidence that:
(a) He has been employed by the respondent since 20 January 2020 as a Senior People and Culture Business Partner and has been responsible for supporting the respondent’s Operations team on the Chevron contract since approximately April 2021;
(b) During the period claimed by the applicant, the applicant was paid on a monthly basis, two weeks in advance and two weeks in arrears on or about the 15th of each month;
(c) The applicant’s annualised base salary during the period covered by his claim was $136,621.00. The applicant was paid a site uplift of 35% of his base salary, being $47,817.35. The applicant’s Total Annual Earnings were therefore $184,438.00;
(d) The overcycle daily rate calculation for site work for the applicant is outlined in the following table:
Site - Based Personnel - Overcycle Calculation for Site Work
Amount
Comments
Total Annual Earnings
$184,438.00
Base + Uplift (working full 12 months)
Earnings per 4 week Cycle
$14,187.54
Base + Uplift / 13 Cycles
Monthly Salary (per payslip)
15,369.83
Annual Earnings / 12 months
Monthly Hours (per payslip
164.67
Notional ordinary hours 38 x 4.333 weeks
Normal Rostered daily rate
506.70
Paid for all 28 days incl. R+R
Overcycle daily rate (if NO R&R taken)
1013.40
Cycle Salary / 14 days on site
(e) The applicant’s payslip for the month of May 2020 shows that the applicant was paid his gross salary for the period of $15,369.87 being 1/12 of his Total Annual Earnings, and an additional $1,013.40 for a day of overcycle;
(f) On 9 April 2020, the applicant submitted an Overcycle Payment Request Form that corresponds to the overcycle payment made to the applicant in the payslip for the month of May 2020. The applicant did not submit an Overcycle Payment Request Form for any of the other days worked in the period 22 April to 5 May 2020;
(g) On the Overcycle Payment Request Form submitted by the applicant on 9 April 2020, the applicant states ‘[he] returned to work 1 day early to align with new 4+4 roster’;
(h) The applicant was paid the overcycle payment for 8 April 2020, as he had returned early to his rostered work schedule, reducing his prior R&R period by one day;
(i) In line with the temporary roster change, the applicant was rostered to work a 28-day period from 8 April until 5 May 2020. The applicant was paid the Normal Rostered daily rate of $506.70 for each day of rostered work in this period;
(j) The other way to calculate the pay received during each rostered work cycle is to pay $1,013.40 for each day of rostered work in the period, and then $0 for each day of R&R in the period;
(k) The applicant was then rostered for a 28-day R&R period from 6 May until 2 June 2020. As the period of 6 May until 2 June 2020 was R&R, the applicant was also paid the Normal Rostered daily rate of $506.70 for each day of this R&R period. The applicant was not required to (and did not) work during this period;
(l) The entitlement to R&R is separate to any annual leave entitlements. As a result, the applicant was not required to take annual leave for the period 6 May until 2 June 2020. Business records indicate that the applicant was absent from work from 3 June 2020. On returning to work, the applicant returned to a 14 days on/14 days off roster;
(m) The applicant’s payslip for the month of April 2020 shows what the applicant was paid in April 2020; and
(n) There have been a number of situations on a number of the respondent’s different operations on the Chevron contract where employees have requested to leave based on a personal or a family emergency and have departed from site early. He is not aware of a situation where someone has asked to leave a facility early and it has been denied. The applications that cross his desk are generally emergency situations. If someone was just requesting to leave early, it wouldn’t come to him; that would be an operational decision.
69 Mr Scott Ellevsen gave evidence that:
(a) He has been employed by the respondent, first as a Site Superintendent on the Gorgon Gas Plant on Barrow Island from April 2019 until October 2019, then as Maintenance and Projects Manager from October 2019;
(b) He has managerial responsibility for the respondent’s operations for Chevron at the Wheatstone Offshore Platform;
(c) The applicant was hired on 1 July 2017 under the terms of the Contract. The Contract sets out the remuneration for the position the applicant holds. The remuneration consists of a Total Fixed Remuneration of $138,104.68 made up of a base salary of $126,137.68 plus $11,967 in superannuation contributions;
(d) In addition to the contract terms, the respondent has made other discretionary payments to the applicant, such as paid travel time;
(e) The rate currently paid to the applicant is a Total Fixed Remuneration of $149,600 (inclusive of superannuation) as spelled out in the letter to the applicant dated 1 April 2019;
(f) Over time, the respondent has made discretionary increases to the remuneration paid under the Contract, however, these increases do not form part of the Contract. The current Total Fixed Remuneration of $149,600 currently paid to the applicant amounts to a base salary of $136,621. Adding the site uplift of 35% to this base salary results in a Total Annual Earning, excluding superannuation of $184,438. Dividing this rate by the number of days worked in a year on an even time roster (182) results in a pay rate of $1,013.40 per 12-hour day;
(g) This is the daily rate the respondent pays for each day worked, and is also the daily rate paid for any overcycle approved and worked;
(h) The applicant regularly worked approved overcycle and was paid for time worked at the rate of $1,013.40 per day. Records provided by payroll indicate the applicant had worked overcycle on 16 occasions since January 2020. This is in lieu of time rostered off, i.e., time worked in addition to time rostered to work in the prevailing cycle;
(i) The applicant working overcycle is not unusual, as most of the crew are approved to work overcycle for part of the day following the last rostered day prior to flying out;
(j) As a consequence of restrictions in relation to COVID-19, the respondent advised employees that flights to and from site would be restricted and as a consequence required its employees on the site to temporarily move to a four weeks on/four weeks off roster. This meant employees would work 28 days on/28 days off instead of 14 days on/14 days off. This was expected to be for about three cycles; however the arrangement was in place for only two cycles before flights to site returned to the prior frequency; and
(k) The revised arrangements were put in place and commenced on 8 April 2020. The applicant was rostered to work 28 days from 8 April until 5 May 2020, with a corresponding rostered off period of 28 days from 6 May to 2 June 2020. As is customary, the applicant worked overcycle for a period before flying out on the morning of 6 May 2020 (day 29).
Considerations
70 The Full Bench in Simons v Business Computers International Pty Ltd (1985) 65 WAIG 2039 found that the jurisdiction of the Commission in matters pursuant to s 29(1)(d) (previously s 29(b)(ii)) of the Act is judicial:
The jurisdiction of the Commission which is founded by proceedings brought under section 29 (b) (ii) of the Act is judicial. It is not arbitral or legislative. The Commission’s jurisdiction is thus limited to the ascertainment of existing rights by a determination of whether or not an employee has been denied a benefit not being a benefit under an award or an order, to which the employee is entitled under a contract of service.
71 An employee must therefore establish that their claim is for a benefit to which they are entitled under their contract of employment. The Commission must determine the terms of the contract of employment and decide whether the claim constitutes a benefit that has been denied under the contract having regard to the obligations on the Commission to act according to equity, good conscience, and the substantial merits of the case: Belo Fisheries v Froggett (1983) 63 WAIG 2394; Waroona Contracting v Usher (1984) 64 WAIG 1500; Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307.
72 The meaning of ‘entitled’ in the context of the section must mean entitled as a matter of legal right because it refers to benefits under the contract: Perth Finishing College Pty Ltd v Watts at 2313. To establish that there is a claim for a benefit under the contract the terms of the contract must be considered.
73 The principles applying to a claim of denied contractual benefit are well settled: Hotcopper Australia Ltd v Saab [2001] WAIRC 03827 at [34]; (2001) 81 WAIG 2704 at 2707:
The limitations (and/or conditions precedent to the exercise of jurisdiction and/or power) include the following –
(a) The claim must relate to an “industrial matter”, as defined in s7 of the Act.
(b) The claim must be made by an “employee”, as defined in s7 of the Act.
(c) The benefit claimed must be a contractual benefit, i.e. the claimant must be entitled to the claim under his/her contract of service.
(d) The subject contract must be a contract of service.
(e) The benefit must not arise under an award or order of the Commission.
(f) The benefit must have been denied by the employer.
74 There is no dispute the applicant’s claim is an industrial matter, the applicant was at the relevant time an employee of the respondent, the benefit claimed is a contractual benefit, the Contract is a contract of service, and the benefit does not arise under an award or order of the Commission.
75 The remaining question for resolution is whether the applicant was denied a benefit that was otherwise due to him. Determining this question requires a determination of what were the terms of the Contract that relate to the payment of the overcycle rate and specifically, whether the terms provide for the applicant to be entitled to payment of the overcycle rate for the days worked between 22 April and 5 May 2020 inclusive.
76 The Court of Appeal relevantly summarised the principles that apply to the construction of a contract in Chevron (Tapl) Pty Ltd v Pilbara Iron Co (Services) Pty Ltd [2021] WASCA 193 at [127]:
The principles applicable to the construction of written contracts established by decisions of the High Court are well known. They were outlined in Black Box Control v TerraVision and in Sino Iron Pty Ltd v Mineralogy Pty Ltd. By way of summary:
(1) The construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. The starting point for the proper construction of a clause is the language used in the clause. In particular, one starts by identifying the possible meanings that the words chosen by the parties can bear.
(2) Ascertaining the meaning of terms in an instrument requires a determination of what a reasonable person would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract.
(3) The instrument must be read as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed to have some operation.
(4) The general principle applicable to the construction of commercial contracts is that they should be given a businesslike interpretation. Absent a contrary intention, the court approaches such contracts on the basis that the parties intended to produce a result which makes commercial sense. This requires that the construction placed on the term or terms in question is consistent with the commercial object of the agreement. However, it must also be borne in mind that business common sense may be a topic on which minds may differ.
77 The approach to be adopted in determining the rights and liabilities of the parties to a contract was summarised in Rohan v S&DH Enterprises Pty Ltd [2022] WAIRC 00196 at [19]; (2022) 102 WAIG 347:
An objective approach is to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of the employment contract is to be determined by what a reasonable person would have understood those terms to mean, which involves consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract: Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89 at [295] citing Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 and Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 201 CLR 181 at [11].
78 The applicant submits that any right said to be implied in the Contract enabling the respondent to change the roster, must be implied to be consistent with the Award including the consultation obligations therein.
79 The respondent submits that whether or not the Award and the consultation obligations therein were complied with is not relevant to the applicant’s application. The respondent submits that the Award has no relevance to the operation of the Hours of Work Clause and the Overcycle Clause. The respondent submits that there is no basis to imply or be informed by the Award in interpreting the Contract.
80 I find that clauses 32 and 14.1 of the Award do not aid in the interpretation of the Contract. This is consistent with Byrne & Frew v Australian Airlines Ltd [1995] HCA 24 and the longstanding principle that industrial awards and employment contracts operate in parallel and award terms are not, unless expressly so, incorporated into employment contracts.
81 Having regard to the principles for the construction of contracts, in particular, consideration of the language used and the circumstances addressed by the Contract, that the Contract is to be read as a whole, a construction that makes the various parts of the Contract harmonious is preferable, and each part of the Contract should be construed to have some operation, I find that the Contract entitles the respondent to vary the applicant’s roster because of the use of the words ‘initial roster’ in the Hours of Work Clause and because of the various flexibility provisions in the Flexible Working Hours clause.
82 Consistent with the principles for the construction of contracts at paragraphs [76(2)] and [77] above, I find that a reasonable person would have understood the words ‘initial roster’ to mean that the roster may change.
83 Further, I find that a reasonable person would have understood the words ‘includes, but is not limited to’ in the Flexible Working Hours clause to mean the applicant is required to remain flexible in order to meet operational requirements beyond those specifically listed in the Flexible Working Hours clause. This means the various flexibility provisions in the Flexible Working Hours clause are not exhaustive and therefore allow for the respondent to change the roster in circumstances outside of those outlined in sub-paragraphs (a) to (f). Relevantly, this includes the circumstances arising from flight restrictions to and from site as a result of COVID-19.
84 The applicant submits that even if the initial roster can be changed, absent the Contract setting out how the rosters can change, any changes to the roster need to be read consistently with the Overcycle Clause.
85 The Contract does not outline the mechanism as to how the respondent would go about varying the applicant’s roster, and does not outline, as the applicant has submitted, who is to make the decision to vary the applicant’s roster, how they are to vary it, and when that would occur. Whilst it may have provided certainty for the parties if the Contract did outline the mechanism for the roster variation, I do not consider it necessary for the Contract to contain such provisions. I find it is sufficient for the Contract to contain a right for the respondent to vary the applicant’s roster, and for the respondent to then do so.
86 There is no dispute that the applicant’s roster in the relevant work cycle was varied from a 14 days on/14 days off to a 28 days on/28 days off work cycle. The issue in dispute is what rate of pay the applicant was entitled to when he worked the additional 14 days in the work cycle.
87 The applicant says he was first informed by the OIM from Chevron that his roster was to change from a 14 days on/14 days off to a 28 days on/28 days off work cycle when he arrived at site, and he takes issue with what he says is the lack of communication from the respondent’s Human Resources department to his enquiries regarding what he would be paid whilst working the additional 14 days in the work cycle. However, the facts are that the applicant’s roster did change and the applicant worked the additional 14 days.
88 I understand the applicant is not contending that the respondent was not entitled to vary his roster from a 14 days on/14 days off to a 28 days on/28 days off work cycle, but rather that once the respondent varied his roster, that this variation entitled him to the overcycle rate for the days worked above his usual roster of 14 days on/14 days off.
89 I find that, at the relevant time, the applicant was working a varied roster of 28 days on/28 days off.
90 The consequence of this is that the applicant was not working ‘over’ the cycle, such as to trigger the payment of the overcycle rate.
91 The Overcycle Clause Table provides an overcycle daily rate ‘if NO R&R taken’. In relation to these words, the applicant submits that they should not be read as meaning there is no obligation to pay the overcycle rate if the applicant was given an equivalent amount of R&R to the days that he worked. The respondent submits that these words make the payment of the overcycle daily rate conditional on no R&R being taken and reinforces that overcycle is time worked displacing time otherwise rostered off.
92 There is no dispute that the applicant was rostered to, and took, a 28-day period of R&R from 6 May until 2 June 2020.
93 In circumstances where I have found the applicant was working a 28 days on/28 days off roster, and having regard to the principles for construction of contracts set out in the cases cited above, I find that the words ‘if NO R&R taken’ means the applicant was not entitled to the overcycle rate because immediately following the days the applicant worked, he took a corresponding period of R&R.
94 I am therefore satisfied that the applicant has not discharged the onus upon him to establish, on the balance of probabilities, the existence of an entitlement to the payment of the overcycle rate for the days worked between 22 April and 5 May 2020 inclusive.
95 For the preceding reasons, I do not consider it necessary to make any findings about whether the applicant is disentitled to the overcycle rate because he did not submit an Overcycle Payment Request Form as set out in the Overcycle Clause, or whether he is disentitled to the overcycle rate because he was paid above the rates outlined in the Contract.
Conclusion
96 For the preceding reasons, I am not persuaded that the applicant has established his claim for a denied contractual benefit.
97 Accordingly, application B 6 of 2021 will be dismissed.