2024 WAIRC 00064
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION : 2024 WAIRC 00064

CORAM : INDUSTRIAL MAGISTRATE B. COLEMAN

HEARD : ON THE PAPERS

DELIVERED : FRIDAY, 9 FEBRUARY 2024

FILE NO. : M 76 AND M 91 OF 2022

BETWEEN : CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
CLAIMANT

AND

QUBE PORTS PTY LTD
RESPONDENT

CatchWords : Long Service Leave entitlement pursuant to an Industrial Instrument; Classification of employment; Changes to classifications throughout employment history; Calculation of actual entitlement; Interpretation of Industrial Instrument.
Legislation : Fair Work Act 2009 (Cth)
Instrument : Qube Ports Pty Ltd - Port of Port Hedland Enterprise Agreement 2020
Stevedoring Industry (Long Service Leave) Award 1992
Case(s) referred
to in reasons: : Kucks v CSR Ltd [1996] IRCA 141; 66 IR 182
Re Harrison; Ex parte Hames [2015] WASC 247
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
Fedec v The Minister for Corrective Services (2017) 97 WAIG 1595
Civil Service Association of Western Australia Incorporated v Commissioner, Western Australia Police Department [2019] WAIRC 00142
Result : Claim (in relation to long service leave) dismissed
Representation:


Claimant : Ms S. Sayed (of counsel) as instructed by the Construction, Forestry, Maritime, Mining and Energy Union
Respondent : Mr N. Ellery (of counsel) as instructed by Corrs Chambers Westgarth

REASONS FOR DECISION
1 The respondent employer, Qube Ports Pty Ltd, admits all contraventions of claims M 76 and 91 of 2022 aside from the long service leave portion of claim M 91 of 2022.
2 The Court has granted leave for the disputed portion of the claim to be heard and determined on the papers.
3 Ms Macdonald ceased her employment as a port worker with Qube Ports on 3 December 2021.
4 She argues that her employer has breached sections 50 and 323 of the Fair Work Act 2009 (Cth) (the Act), because she was underpaid her long service leave entitlements upon cessation. Ms Macdonald claims that she should have been paid an entitlement pursuant to the Qube Ports Pty Ltd - Port of Port Hedland Enterprise Agreement 2020 (the 2020 Agreement) for the period from 13 August 2008 to 31 May 2010. Ms Macdonald is incorrect.
5 The three issues are as follows:
a) What were Ms Macdonald’s employment classifications throughout her working history with the employer?
b) Did each employment classification give rise to a long service leave entitlement pursuant to the 2020 Agreement?
c) What was Ms Macdonald’s total long service leave entitlement pursuant to the 2020 Agreement?
6 Whether Ms Macdonald was underpaid her long service leave requires a thorough examination of the 2020 Agreement. Ms Macdonald was subject to two industrial agreements throughout her working history with the employer: Qube Ports Pty Ltd – Port of Hedland Enterprise Agreement 2016 (the 2016 Agreement) and Qube Ports Pty Ltd – Port of Port Hedland Enterprise Agreement 2020. The 2020 Agreement supercedes the 2016 Agreement, however, the Long Service Leave clause is identical in each agreement, save and except for changes to paragraph numbering.

7 The principles for interpreting industrial agreements are well settled. The task involves different considerations when compared to the interpretation of legislation. The objective intention of the parties must be determined by considering the text of the instrument, which begins by considering the ordinary meaning of its words. However, a literal or pedantic interpretation should be avoided where that would produce a result that is inconsistent with the apparent intention of those that drafted it. Regard must be had to the context and purpose of the provision being construed, bearing in mind that the drafters were likely focused on practicality and the relevant industrial relations environment. Context may appear from the text of the whole instrument, its arrangement, and/or the position of the provision within the instrument. If the plain meaning is clear, the Court will have no need to refer to extrinsic materials. Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J; Re Harrison; Ex parte Hames [2015] WASC 247 at [50] - [51] per Beech J; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 at [53]; Fedec v The Minister for Corrective Services (2017) 97 WAIG 1595 at [21] - [23]; Civil Service Association of Western Australia Incorporated v Commissioner, Western Australia Police Department [2019] WAIRC 00142 at [10]  [11] per Kenner SC.

8 An employee’s entitlement to long service leave pursuant to the 2020 Agreement arises by reference to cl 45.1, which incorporates the Stevedoring Industry (Long Service Leave) Award 1992 (the LSL Award). See cl 44.1 of the 2016 Agreement and cl 45.1 of the 2020 Agreement.

9 An employee is only entitled to long service leave in accordance with the 2020 Agreement if the requirements of the LSL Award are satisfied.

What were Ms Macdonald’s employment classifications throughout her working history with the employer?
10 Ms Macdonald’s employment status changed four times throughout her work history with the employer. Contrary to her belief, she was not a variable salary employee from 13 August 2008. Paragraph 5 of the witness statement of Rebecca Macdonald dated 4 August 2023.

11 Ms Macdonald commenced full-time employment with the employer on 13 August 2008 in the role of Administration Coordinator. She ceased in this role on 30 November 2008 (Period 1). Paragraph 16 and annexure 4 of the witness statement of Olga De Oliviera dated 1 September 2023.

12 On 1 December 2008, Ms Macdonald’s employment classification changed to a supplementary employee: she remained in this role until 31 May 2010 (Period 2). Paragraph 17 and annexure 5 of the witness statement of Olga De Oliviera dated 1 September 2023.

13 On 1 June 2010, Ms Macdonald commenced on a new contract of employment and was employed as a guaranteed wage employee until 24 July 2011 (Period 3). Paragraph 18 and annexure 6 of the witness statement of Olga De Oliviera dated 1 September 2023.

14 On 25 July 2011, her employment classification changed to a variable salary employee. She remained in that role until her termination on 4 November 2021 (Period 4). Paragraph 19 and annexure 7 of the witness statement of Olga De Oliviera dated 1 September 2023.


Did each employment classification give rise to a long service leave entitlement pursuant to the 2020 Agreement?
15 The 2020 Agreement at cl 45 sets out long service leave entitlements for ‘Employees’ in accordance with the LSL Award.
16 Employee is defined at cl 2.1(g) as:
… a stevedoring employee who works in the classifications set out in clause 11.1 and Schedule 2 of this Agreement and is employed at the Port of Port Hedland. (Emphasis added)
17 The definition in the 2020 Agreement is consistent with the LSL Award, since the Award applies to ‘stevedoring employees’. The LSL Award defines ‘Employee’ in cl 3 as a stevedoring employee as defined in the Stevedoring Industry Award 1991 (the 1991 Award) or the Stevedoring Industry (The Port Waratah Stevedoring Co Pty Ltd) Award 1992 and who is employed as a stevedoring employee grade 1 to 6 inclusive under those awards. Clause 4(b) of the LSL Award excludes employees that fall within cl 53 of the 1991 Award or cl 48 of the Stevedoring Industry (The Port Waratah Stevedoring Co Pty Ltd) Award 1992.

18 By reference to the various instruments, a stevedoring employee is a person eligible to be a member of a union party to the Stevedoring Industry Award 1991 and who is employed by an employer bound by that award for the purpose of being engaged in stevedoring operations. Clause 7(p) of the 1991 Award.

19 The definition of ‘stevedoring operations’ in the 1991 Award is extensive. In summary, such operations relate to:
a) the loading or unloading of cargo and other goods from ships,
b) receival, delivery, storage, handling or preparation of such cargo,
c) clerical functions in connection with stevedoring operations,
d) maintenance, construction or repair work,
e) watching guarding and protection duties in connection with operational activities,
f) supervision, direction, checking and instruction of stevedoring employees, and
g) general functions and duties in connection with ships, cargo, vehicles and buildings at a wharf. Summarised from cl 7(q) of the 1991 Award.

20 Therefore, to be eligible for long service leave in accordance with cl 45.1 of the 2020 Agreement, the following conditions must be satisfied:
i) A person needs to fall within the definition of ‘Employee’ pursuant to the Agreement; and
ii) an employee needs to be employed for the purposes of being engaged in stevedoring operations; and
iii) the employee must work in one of the job classifications set out in Schedule 2.
Period 1
21 When Ms Macdonald commenced employment in August 2008, her job description was ‘Administration Coordinator’. See paragraph 16 and annexure 4 of the witness statement of Olga De Oliviera dated 1 September 2023.

22 No evidence has been presented which sets out the particular functions of that role. It is possible that the position falls within the definition of being engaged in stevedoring operations pursuant to the definition set out in the LSL Award, since stevedoring operations include clerical functions, however, there is a third requirement that must be satisfied for an employee to fall within the ambit of cl 45: the job classification must be listed in Schedule 2.
23 In the absence of any evidence related to the functions of her role (other than the job title), the job description of ‘Administration Coordinator’ does not fit within the job classifications set out in Schedule 2 of the 2020 Agreement.
24 Ms Macdonald may have been eligible for long service leave pursuant to extraneous legislation or other industrial instruments, however, she was not entitled to long service leave pursuant to the 2020 Agreement for the period from 13 August to 30 November 2008. A close examination of the evidence reveals that Ms Macdonald was paid by the employer for long service leave accrued during this period: paragraphs 21 to 23 and annexures 8 and 9 of the witness statement of Olga De Oliviera dated 1 September 2023.

Period 2
25 On 1 December 2008, Ms Macdonald’s employment classification changed to ‘Supplementary Employee’. No evidence has been presented which sets out the particular functions of that role, doubtless, the work included stevedoring operations.
26 Whether a supplementary employee is entitled to long service leave pursuant to cl 45 is the primary argument between the parties.
27 Ms Macdonald argues that supplementary employees are included in the ‘cohort of Employee’ pursuant to cl 2.1(s) and cl 8 of the 2020 Agreement, therefore, she is entitled to the benefit of cl 45. Paragraphs 12 to 15 of the Claimant’s Outline of Submissions in Reply dated 20 September 2023.

28 However, such an argument fails to consider the 2020 Agreement as a whole and the objective intention of the parties who drafted it.
29 A review of the 2020 Agreement reveals six categories of employees, summarised as follows: Clause 9 of the 2020 Agreement.

a) Full Time Salaried Employee (FSE);
b) Provisional Full Time Salaried Employee (PFSE);
c) Variable Salary Employee (VSE);
d) Provisional Variable Salary Employee (PVSE);
e) Guaranteed Wage Employee (GWE);
f) Supplementary Employee (SE).
30 Each class of employee is granted different entitlements depending upon their classification, however, there is an important distinction between a supplementary employee and all of the other categories: a supplementary employee is not entitled to a minimum annual salary. Clause 9.1 to 9.8 of the 2020 Agreement set out the terms of engagement and the minimum salaries for the various classes of employee.

31 Further, ‘Supplementary Employee’ has a distinct definition within the 2020 Agreement, rather than falling within the general definition of Employee. All other employee categories fall within the general definition:
Employee means a stevedoring Employee who works in the classifications set out in clause 11.1 and Schedule 2 of this Agreement and is employed at the Port of Port Hedland. (emphasis added) Clause 2.1(g) of the 2020 Agreement.


Supplementary Employee means an Employee who is a nonpermanent casually engaged person to supplement the use of other Employees in accordance with clause 9.8 of this Agreement. (emphasis added) Clause 2.1(s) of the 2020 Agreement.


32 This is a very important distinction, since the general definition of ‘Employee’ guarantees that the conditions of cl 45 are satisfied (in other words, if an employee fits within the general definition of ‘Employee’, then they will automatically be eligible for long service leave pursuant to the 2020 Agreement).
33 That then begs the question, why has such a distinction been made? When drafting the 2020 Agreement, what was the intention of the parties when defining the two types of employee?
34 Having considered the 2020 Agreement in its entirety, it is clear on a plain reading of the document that supplementary employees are treated differently to all other classes. Supplementary employees are utilised to ‘supplement’ or ‘add to’ the existing employee structure when there are gaps that require more stevedoring workers. Supplementary workers are employed on a casual basis and are not prevented from working elsewhere. Clause 8.4 of the 2020 Agreement.

35 As stated earlier, supplementary workers are not entitled to a minimum annual salary and are instead renumerated by a composite hourly rate, which includes the casual loading. Clause 9.8.3 and cl 11.3 of the 2020 Agreement.
Supplementary workers are paid at the highest hourly rate compared to the other categories of employee, which is consistent with casual workers in other industries. The reason for the higher rate is because historically, casual workers have not been eligible for entitlements such as paid annual leave, paid parental leave, sick leave or long service leave, unless stipulated in an industrial agreement or specifically set out in legislation.
36 Unlike the other categories of employee, there is no entitlement in the 2020 Agreement to annual or personal leave for a supplementary employee, Clause 34 and cl 35 of the 2020 Agreement make no reference to ‘supplementary employee’.
nor is there any entitlement to be paid for a public holiday not worked, or a closed port day. Clause 33.3.2(e) and cl 33.3.4(e) of the 2020 Agreement.

37 Supplementary employees are paid a pro rata meal allowance based upon the hours worked, Clause 11.5 of the 2020 Agreement.
and are allocated less clothing than the other categories of employee. Clause 16.6 of the 2020 Agreement.

38 Any calculation for claims for worker’s compensation for supplementary employees is based upon an average of the hours worked over a period of three months Clause 52.2 of the 2020 Agreement.
and supplementary employees are not factored in when calculating the percentage of the workforce for Union Leave. Clause 55.4 of the 2020 Agreement.

39 Throughout the 2020 Agreement, there is a scale for the allocation of work to categories of employee, for which supplementary employees are at the lowest end. See for example cl 10.2 and cl 33.3.8(a)(v) of the 2020 Agreement.
Similarly, the selection criteria for the allocation of permanent positions expressly prioritises all other categories of employee over supplementary employees. Clause 16.2 of the 2020 Agreement.

40 There is no specific reference to supplementary employees in relation to termination of employment within the body of the 2020 Agreement Clause 20 of the 2020 Agreement makes no reference to supplementary employees.
and supplementary employees are specifically excluded from redundancy. Clause 9.8.1(d) and cl 21.1.3 of the 2020 Agreement.

41 Finally, the clause related to rates of pay and expenses whilst undertaking training makes it clear that supplementary workers are considered to be casual workers, by specific reference to the word ‘casual’ when describing the entitlements of supplementary workers pursuant to that clause. Clause 46.7(b) of the 2020 Agreement.

42 Reflecting on the whole of the 2020 Agreement, it is clear that the drafters intended there to be a distinction between supplementary employees and all other classes of employee. That intention is reinforced by reference to cl 13. Supplementary workers are employed and trained by the employer as casual workers to supplement gaps in the existing workforce, with the objective that when vacancies become available, such workers will be offered promotion to GWE and beyond.
43 The 2020 Agreement specifically declares that the employer is committed to maximising the utilisation of its employees over and above the use of contractors and labour hire. Clause 18 of the 2020 Agreement.
It is for this reason that the 2020 Agreement creates the category of ‘supplementary employee’, so that the employer can train and retain skilled casual workers within the company that will ultimately progress to permanent employees, depending upon the economic conditions related to stevedoring work.
44 When drafting the 2020 Agreement, the parties chose to create a separate definition for supplementary employees to create a clear delineation between permanent employees and casual employees.
45 Returning then to the primary argument as to whether supplementary employees are entitled to long service leave pursuant to cl 45 of the 2020 Agreement: cl 45.1 does not specifically exclude supplementary employees. Reading the clause as a whole, a reference is made to supplementary employees at cl 45.8, though there are particular reasons for this.
46 Clause 45.8 states:
Any irregularly engaged Employees (VSEs, PVSEs, GWEs or Supplementary Employees) appointed to a FSE or PFSE will preserve his/her leave accrued prior to the appointment. (emphasis added)
47 The purpose of this clause is to preserve long service leave entitlements that have accrued prior to being appointed to a permanent position. The insertion of the words ‘supplementary employee’ into this sub-clause does not purport to extend any long service leave entitlements to that class of employee. The sub-clause specifically relates to the preservation of long service leave ‘already accrued’, however, it is possible for a supplementary worker to have previously accrued long service leave whilst working as another category of employee.
48 By way of example, when cl 13.2 is triggered due to negative economic conditions, a VSE or GWE may elect to downgrade to a Supplementary Employee position whilst those negative circumstances prevail. Clause 13.3.3, Step 3 of the 2020 Agreement.
The employee reverts to his or her previous category of employee when the negative economic conditions have resolved. In such circumstances, the employee would be entitled to preserve his or her long service leave that had accrued prior to downgrading to a supplementary employee.
49 The omission of cl 45.8 from the long service leave clause would result in the VSE or GWE losing their accrued entitlements when self-electing to downgrade during negative economic conditions: such a consequence would be grossly unfair.
50 Given the clear distinction between the defined terms ‘Employee’ and ‘Supplementary Employee’ within cl 2.1(g) (the latter being classified as a casual, non-permanent worker), cl 45.1 does not extend long service leave entitlements to supplementary employees: to do so would require the following words to be ‘read in’ to the clause:
An Employee [or Supplementary Employee] will be entitled to long service leave in accordance with the Stevedoring Industry (Long Service Leave) Award 1992, except as varied herein.
51 It follows then that Ms Macdonald was not entitled to the accrual of long service leave entitlements pursuant to the 2020 Agreement for the period from 1 December 2008 to 30 May 2010.
Period 3
52 It is accepted by the parties that Ms Macdonald was entitled to the accrual of long service leave entitlements pursuant to the 2020 Agreement whilst employed as a GWE for the period from 1 June 2010 to 24 July 2011. Paragraph 25 of the Respondent’s Outline of Submissions dated 1 September 2023 and paragraph 20 of the Claimant’s Submissions in Reply dated 20 September 2023.

Period 4
53 It appears that it is also not in dispute that Ms Macdonald was entitled to the accrual of long service leave entitlements pursuant to the 2020 Agreement whilst employed as a VSE from 25 July 2011 to 4 November 2021. Paragraph 5 of the Statement of Agreed Facts filed 15 February 2023.

What was Ms Macdonald’s total long service leave entitlement pursuant to the 2020 Agreement?
54 Ms Macdonald’s total long service leave entitlement pursuant to the 2020 Agreement was as follows:
Period
Date range
Accrued entitlement
Calculation
1
13 August to 30 November 2008
Nil
Not applicable
2
1 December 2008 to 31 May 2010
Nil
Not applicable
3
1 June 2010 to 24 July 2011
419 days (less 2.8 unpaid weeks or 19.6 days) = 399.4 days or 1.09 weeks The evidence reveals that the employer reduced the long service leave calculation for this period by 2.8 unpaid weeks: see annexure 8 of the witness statement of Olga De Oliviera dated 1 September 2023.

1.09 weeks x 0.87 = 0.94 weeks Pursuant to cl 45.3 of the 2020 Agreement, long service leave that has been accrued prior to 1 July 2012 is accrued at the rate of 0.87 weeks per year of completed service.

4
25 July 2011 to 4 November 2021
342 days, or 0.93 weeks, from 25/7/2011 to 30/06/2012
3414 days, or 9.35 weeks, from 1/7/2012 to 4/11/2021 (less 41.6 unpaid weeks or 291.2 days) = 3122.8 days or 8.5 weeks The evidence reveals that the employer reduced the long service leave calculation for this period by 41.6 unpaid weeks: see annexure 8 of the witness statement of Olga De Oliviera dated 1 September 2023.

0.93 weeks x 0.87 = 0.80 weeks Pursuant to cl 45.3 of the 2020 Agreement, long service leave that has been accrued prior to 1 July 2012 is accrued at the rate of 0.87 weeks per year of completed service.


8.5 weeks x 1.3 = 11.05 weeks Pursuant to cl 45.2 of the 2020 Agreement, long service leave that has accrued from 1 July 2012 is accrued at the rate of 1.3 weeks per year of completed service.

55 The total monetary amount of long service leave payable to Ms Macdonald pursuant to the 2020 Agreement is as follows:
Period 1: Nil
Period 2: Nil
Period 3: 0.94 weeks x ($46.06 Pursuant to cl 45.6(d) of the 2020 Agreement, long service leave accrued prior to 1 July 2012 is paid at the average graded rate as specified in cl 11, plus a loading of 27.5%. Ms Macdonald’s average graded rate was Grade 3 at 36.13 per hour and the 27.5% loading is $9.93, therefore the hourly payable rate for long service leave accrued prior to 1 July 2012 is $46.06.
x 35 hours Pursuant to cl 11.4 of the 2020 Agreement, the composite hourly rate is based on a 35 hour week over a 12 month period.
) = $1,513.40
Period 4: 0.80 weeks x ($46.06 x 35 hours) = $1,289.68
11.05 weeks x ($55.69 Pursuant to cl 45.6(e) of the 2020 Agreement, long service leave accrued from 1 July 2012 onwards will be paid at the composite hourly rate as specified in cl 11. The composite hourly rate applicable to Ms Macdonald was the Grade 2 rate of $55.69.
x 35 hours) = $21,538.10
TOTAL: $24,341.18
56 The employer paid Ms Macdonald $26,391.02 for accrued long service leave. Paragraph 22 and annexure 9 of the witness statement of Olga De Oliviera dated 1 September 2023.
Ms Macdonald therefore received a payment that equated to more than her accrued entitlement. This anomaly is very likely due to the fact that Ms Macdonald accrued long service leave by way of other legislation or another industrial instrument while employed full time during Period 1.

Result
57 Upon the correct interpretation of cl 45 of the Agreement, Ms Macdonald was not entitled to the accrual of long service leave whilst employed as an administrative coordinator, nor as a supplementary employee.
58 The employer has therefore not breached clauses 45.4 and 20.9 of the 2020 Agreement, nor sections 50 or 323 of the Act.
59 The long service leave portion of the claims is dismissed.
B. COLEMAN
INDUSTRIAL MAGISTRATE