­INTERPRETATION OF CLAUSE 18.5 AND ASSOCIATED CLAUSES OF PUBLIC SERVICE AND GOVERNMENT OFFICERS CSA GENERAL AGREEMENT 2017

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2019 WAIRC 00142

DELIVERED : THURSday, 21 March 2019

FILE NO. : P 1 OF 2018

Applicant

AND

Commissioner, Western Australia Police Department

Respondent

Catchwords : Industrial Law – Interpretation of Agreement – Dispute regarding status of employees – Whether an employee can be deemed a shift worker with no roster – Whether an employee can be deemed a shift worker without working prescribed shifts that attract a shift allowance – Whether an employee can be deemed a shift worker and day worker working prescribed hours concurrently – Whether notification and consultation is necessary for employer to change employees’ prescribed hours –  Relevant principles applied – Declaration made.

Legislation : Industrial Relations Act 1979 (WA)     

Result : Declaration issued

Representation:

Counsel:

Applicant : Ms A Wallish

Respondent : Ms D Southcott and with her Mr A Chapple

Case(s) referred to in reasons:

Amcor Ltd v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 222 CLR 241

City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337

Director General, Department of Education v United Voice WA [2013] WASCA 287

Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640

Fedec v Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595

George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498

Kidd v The State of Western Australia [2014] WASC 99

McCourt v Cranston [2012] WASCA 60 

Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451

Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28

Printing and Kindred Industries Union v Public Service Commissioner 1967 AILR 409

Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323

Re Harrison; Ex parte Hames [2015] WASC 247

Re HEF (Aust) (Tas No 2) 1985 AILR 321

Shift Workers’ Case (1972) 72 AR 633

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

Case(s) also cited:

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch, Industrial Union of Worker’s v The West Australian Mint (1998) WAIRC 237

Norwest Beef Industries Ltd v The West Australian Branch, Australasian Meat Industry Employees Union (1984) 64 WAIG 2121

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 67 WAIG 1097

Metal Trades Employers Association v Amalgamated Engineering Union (1936) 36 CAR 534

Reasons for Decision

Background

1         The respondent has an Intelligence Services Division which employs staff as Analysts and others, who are eligible to be members of the applicant union. Their employment is covered by the Public Service Award 1992, the Public Service and General Officers CSA General Agreement 2017 and the Western Australian Police Agency Specific Agreement 2016. The employees generally work Monday to Friday between 7.00 am and 6.00 pm each day, in accordance with cl 18.2 of the Agreement. Sometimes however, due to the nature of their work, the employees are required to attend for duty outside of these hours, in the case of an organised event or in an emergency or other extraordinary situation.

2         In February 2015, the respondent wrote to the Analysts in relation to their hours of work. The letter said that the Analysts are predominantly to work between Monday and Friday each week but noted the need to work outside of these prescribed hours on some occasions. Accordingly, the letter said, “In accordance with cl 17.5 of the Public Sector and Government Officers General Agreement 2014 (the Agreement) I wish to advise that your prescribed hours of duty are varied to make provisions [sic] for you to attend duties on a Saturday, Sunday or public holiday; and/or to perform shift work including work on Saturdays, Sundays or public holidays when required”. The letter went on to provide that where necessary, shift rosters would be developed for employees required to work shifts in accordance with the Award.

3         It seemed common ground that despite this letter, the Analysts have continued to work largely as they did previously, that being Monday to Friday between 7.00 am to 6.00 pm, with the occasional requirement to work outside of these hours. No shift rosters have been developed. Analysts called into work on an organised event or an emergency, have been paid overtime however, on some occasions, the respondent has required them at short notice, purportedly relying on the shift work provisions, to swap a weekday for a weekend.

4         The upshot of this is there is now a dispute between the applicant and the respondent as to the status of these employees: are they “shift workers” for the purposes of the Award and the Agreement? The applicant says that the Analysts cannot be both working “prescribed hours of work” Monday to Friday and be categorised as shift workers too, when it suits the respondent. The applicant maintained that the respondent has been impermissibly seeking to rely on the letter of February 2015, to give notice of a change to prescribed working hours, when in fact the Analysts’ working hours have not changed.

5         The issues seem to have come to a head in April 2018, when questions were raised by members of the applicant about their remuneration. The applicant contended that many Analysts did not know that the respondent had deemed them to be shift workers. The applicant contended that the Intelligence Analysts are not shift employees, as they do not work in accordance with a shift roster. The employees are not working prescribed shifts as set out in the Award. Furthermore, consultation provisions in the Agreement were not complied with by the respondent and the respondent cannot rely on the letter of February 2015, as constituting an ongoing “one months’ notice” to vary the Analysts’ prescribed working hours to enable them to work shift work, on an indefinite basis.

6         The respondent on the other hand, accepted that there is a distinction between working varied prescribed hours of work on a weekend and a public holiday, and shift work. It was submitted that the act of giving notice and invoking the relevant provision of the Agreement in relation to shift work, meant that the relevant employees are thereby deemed shift workers. The respondent contended that the presence of a roster is not necessary in this respect.  

7         The dispute was initially referred to the Arbitrator under s 44 of the Act. The Applicant has subsequently commenced these proceedings for an interpretation of relevant provisions of the Award and the Agreement under s 46 of the Act.

Questions asked

8         The application poses five questions in the following terms:

1. Question 1: When reading clause 18.5 together with clause 20 of the General Agreement and clause 21 of the Award can an Employee be deemed a shift worker when there is no roster?
2. Question 2: When reading clause 18.5 together with clause 20 of the General Agreement and clause 21 of the Award can an employee be deemed a shift worker without working prescribed shifts which attract a shift allowance?
3. Question 3: By virtue of clause 18.5, can an Employee be deemed both a shift worker and a day worker working prescribed hours concurrently?
4. Question 4: If an Employer wishes to vary an Employee’s prescribed hours do they need to provide notification of change and consultation with Employees as per clause 49.4 of the General Agreement?
5. Question 5: Can an Employer provide a one off letter to Employees varying their prescribed hours to make provisions for subsections (i), (ii) and (iii) of clause 18.5 (a) of the General Agreement at the Employers convenience and does providing a one off letter of this nature eliminate the requirement to give Employees one months’ notice for any future changes to prescribed hours?

Agreement and Award provisions

9         It is convenient to set out at this point the relevant terms of the Agreement and the Award. The Agreement clauses are as follows:

18.1 The provisions of this clause shall replace the provisions of clause 20 - Hours of the Applicable Award.

Prescribed Hours

18.2 The prescribed hours of duty shall be 150 hours per four week settlement period, to be worked between 7.00am and 6.00pm, Monday to Friday, as determined by the Employer, with a lunch interval of not less than 30 minutes.

18.3 Subject to the lunch interval, prescribed hours are to be worked as one continuous period. However, Employees shall not be required to work more than five hours continuously without a break.

18.4 This does not preclude Employers requiring or agreeing to the working of standard hours of 7.5 hours per day with a lunch interval to be taken between 12.00 noon and 2.00pm. Where working of standard hours is required by the Employer, the requirement must be consistent with operational needs and customer service requirements.

18.5 (a) The Employer may vary the prescribed hours of duty observed in the Agency or any branch or section thereof, consistent with a 150 hour four week settlement period, so as to make provisions for:

(i) the attendance of Employees for duty on a Saturday, Sunday or public holiday;

(ii) the performance of shift work including work on Saturdays, Sundays or public holidays; and

(iii) the nature of the duties of an Employee or class of Employees in fulfilling the responsibilities of their office;

provided that where the hours of duty are so varied an Employee shall not be required to work more than five hours continuously without a break.

(b) Employers wishing to vary the prescribed hours of duty to be observed shall be required to give one month's notice in writing to the Agency, branch, section or Employees to be affected by the change.

Ordinary Hours

(c) Employees working during their prescribed hours of duty on a Saturday, Sunday or public holiday will attract the following payment for all ordinary hours worked:

(i) Saturdays - time and a half.

(ii) Sundays - time and three quarters.

(iii) Public holidays - double time and a half.

Provided that subject to agreement between the Employer and the Employee, work performed during ordinary rostered hours on a public holiday shall be paid for at the rate of time and one-half and the Employee may, in addition, be allowed a day's leave with pay to be added to annual leave or to be taken at some other time within a period of one year.

Overtime

(d) An Employee required to work overtime on any day shall be paid the appropriate rates as set out in clause 22 - Overtime Allowance of the Applicable Award for all time so worked.

…

20. SHIFT WORK

20.1 This clause is to be read in conjunction with clause 21 - Shift Work Allowance of the Applicable Award.

20.2 Definitions

The following terms shall have the following meaning and shall replace the definitions for Day shift, Afternoon shift and Night shift contained in clause 21 (I) of the Applicable Award:

(a) "Day shift" means a shift commencing at or after 6.00am and before 12.00 noon.

(b) "Afternoon shift" means a shift commencing at or after 12.00 noon and before 6.00pm.

(c) "Night shift" means a shift commencing at or after 6.00pm and at or before 5.59am.

20.3 An Employee required to work a weekday Night shift will, in addition to the Ordinary rate of salary, be paid an allowance in accordance with the following formula for each shift so worked:

12 20

annual salary X

313 10 100

20.4 Notwithstanding clause 20.3, the minimum amount payable per shift to an Employee required to work Night shift will be the allowance payable to an Employee with an annual salary of level 1.7 Employee as per Schedule 2 - General Division Salaries of this General Agreement using the formula provided in clause 20.3.

20.5 For the purposes of this clause "annual salary" is the Ordinary rate of salary payable for the position as prescribed in Schedule 2 - General Division Salaries or Schedule 3 - Specified Calling Salaries of this General Agreement.

20.6 This Night shift allowance will be paid in lieu of the night shift allowance prescribed in clause 21 (2) (a) of the Applicable Award.

The Award provision is in the following terms:

21. - SHIFT WORK ALLOWANCE

(1) In this Clause the following expressions shall have the following meaning:

"Day shift" means a shift commencing after 6.00am and before 12.00 noon.

"Afternoon shift" means a shift commencing at or after 12.00 noon and before 6.00pm.

"Night shift" means a shift commencing at or after 6.00pm and before 6.01am.

"Public holiday" shall mean a holiday provided in Clause 24. - Public Holidays of this Award.

(2) (a) (i) An officer required to work a weekday afternoon or night shift, will in addition to the ordinary rate of salary, be paid an allowance in accordance with the following formula for each shift so worked.

(ii) Notwithstanding the above, the minimum amount payable per shift to an employee required to work afternoon or night shift will be the allowance payable to an employee with an annual salary of Level 1.7 using the formula at clause 21 (2) (a) (i).

(iii) For the purposes of clause 21 (2) (a), “annual salary” is the ordinary rate of salary payable for the position.  Clause 66(2) of the award defines annual salary for calculation purposes.

(b) Work performed during ordinary rostered hours on the following days shall be paid for at the following rates, in lieu of the allowance prescribed in clause 21 (2) (a):

(i) Saturdays - time and one-half;

(ii) Sundays - time and three quarters; and

(iii) Public holidays – double time and one half.

Provided that in lieu of the provisions of clause 21 (2) (b) (iii) and subject to agreement between the employer and the officer, work performed during ordinary rostered hours on a public holiday shall be paid for at the rate of time and one-half and the officer may, in addition be allowed a day’s leave with pay to be added to annual leave to be taken at some other time within a period on one year.

(c) Weekend Penalty Rates for Casual Employees

(i) Notwithstanding the provisions of clause 10 (2) (a) – Casual Employment, casual employees are entitled to weekend shift penalties. Work performed during ordinary rostered hours on the following days shall be paid for at the following rates:

Saturdays and public holidays - time and one-half (casuals are already paid a loading in lieu of public holidays); and

Sundays - time and three quarters.

(ii) These rates are paid in addition to but not compounded on the casual loading provided for clause 10 (1) (a) – Casual Employment.

(d) An officer rostered off duty on a public holiday shall be paid at ordinary rates for such day or, subject to agreement between the employer and the officer, be allowed a day's leave with pay in lieu of the holiday to be added to the officer's next annual leave entitlement or taken at a mutually convenient time within a period of one year.

(e) An officer engaged on shift work who is rostered to work regularly on Sundays and/or public holidays shall be entitled to one week's leave in addition to the officer's normal entitlement to annual leave of absence for recreation.

(f) Additional leave provided by paragraphs (b) and (d) of this subclause shall not be subject to the annual leave loading prescribed by subclause (11) of Clause 23. - Annual Leave of this Award.

(g) Work performed by an officer in excess of the ordinary hours of the officer's shift or on a rostered day off shall be paid for in accordance with the overtime provisions of Clause 22. - Overtime Allowance of this Award.

(h) (i) When an officer begins or ceases a shift between the hours of 11.00 pm and 7.00 am and no public transport is available, reimbursement at the appropriate rate of hire prescribed by subclause (4) of Clause 47. - Motor Vehicle Allowance of this Award shall be made if the officer's private motor vehicle or cycle is used for the journey between the officer's residence and headquarters and the return journey.

  Provided however, that any officer who, on or after October 30, 1987, elects to be permanently retained on a fixed or non rotating shift that begins or ceases between or on the hours of 11.00 pm and 7.00 am shall not be eligible to claim this reimbursement.

(ii) The provisions of this subclause shall only be applied to officers living and working within a radius of 50km of the Perth City Railway Station.

(3) Hours of Duty and Rosters

(a) An officer engaged on shifts shall work a 75-hour fortnight, exclusive of meal intervals, on the basis of not more than ten (10) shifts per fortnight of not more than seven and one half hours duration.  Provided that where agreement is reached between the employer and the Association the length and/or number of shifts worked per fortnight may be altered.

Provided that when the agreed length of a shift is extended past seven and one half hours, overtime shall be payable only for time worked in excess of the rostered shift.

Provided also that whenever an agreed alteration to the number of hours per shift has occurred then the allowance per shift shall be varied on a pro rata basis to reflect any variation to other than seven and one half (7½) hours.

(b) Meal breaks shall be for a period of at least thirty (30) minutes, but not greater than one hour for each meal.

(c) Officers may be rostered to work on any of the seven days of the week provided that no officer shall be rostered for more than six (6) consecutive days.

Provided that where agreement is reached between the employer and the Association, shift workers may be exempted from this provision.

(d) The roster period shall commence at the beginning of a pay period and continue for fourteen (14) consecutive days.  Rosters shall be available to officers at least five (5) clear working days prior to the commencement of the roster.

(e) A roster may only be altered on account of a contingency, which the employer could not have been reasonably expected to foresee.  When a roster is altered, the officer concerned shall be notified of the changed shift 24 hours before the changed shift commences.  Provided that where such notice is not given, the officer shall be paid overtime in accordance with Clause 22. - Overtime Allowance of this Award, for the duration of the changed shift.  This provision shall not apply to an officer who was absent from duty on the officer's last rostered shift.

(f) An officer shall not be rostered for duty until at least ten (10) hours have elapsed from the time the officer's previous rostered shift ended.  Provided that where agreement is reached between the Association and the employer the ten (10) hour break may be reduced to accommodate special shift arrangements, except that under no circumstances shall such an agreement provide for a break of less than 8 hours.

(g) An officer shall not be retained permanently on one shift unless the officer so elects in writing.

(h) Officers shall be allowed to exchange shifts or days off with other officers provided the approval of the employer has been obtained and provided further that any excess hours worked shall not involve the payment of overtime.

(i) No officer shall be on out of hours contact after the last working day preceding a period of annual leave or long service leave.

Consideration

10      The relevant principles in relation to the interpretation of industrial instruments are well settled. A recent summary of these principles was set out in a decision of the Full Bench of the Commission in Fedec v Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595. At pars 21-23 Smith AP and Scott CC observed:

Interpreting an industrial agreement - general principles of interpretation

21 The approach that is to be applied when interpreting an industrial agreement is well established. This is:

(a) Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.

(b) The task of construction of an industrial agreement is to be approached in a way that allows for a generous construction: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362.

(c) Industrial agreements are made for industries in light of the customs and working conditions of each industry and must not be interpreted in a vacuum divorced from industrial realities: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498; City of Wanneroo v Holmes (378 - 379) (French J).

22 The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement. In Re Harrison; Ex parte Hames [2015] WASC 247, Beech J said [50] - [51]:

The general principles relevant to the proper construction of instruments are well-known. In summary:

(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;

(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;

(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;

(4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;

(5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ; and

(6) an instrument should be construed 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 so as to have some operation (Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ); Kidd v The State of Western Australia [2014] WASC 99 [122]; Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 [106] - [112]; Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 [55] (Martin CJ, Pullin & Murphy JJA agreeing)).

These general principles apply in the construction of an industrial agreement (Director General, Department of Education v United Voice WA [2013] WASCA 287 [18] - [20] (Pullin J, Le Miere J agreeing), [83] (Buss J)).  The industrial character and purpose of an industrial agreement is part of the context in which it is to be construed (Amcor Ltd v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2] (Gleeson CJ and McHugh J); Director General v United Voice [81]; see also Amcor v CFMEU 66 (Kirby J), 129 - 130 (Callinan J)).

23 To these principles, the following observations made by Pullin J in Director General, Department of Education v United Voice WA [2013] WASCA 287; (2013) 94 WAIG 1 [18] - [19] should be added:

The Agreement has to be construed to determine what the intention of the parties was at the time the Agreement was entered into. This has to be determined by ascertaining what a reasonable person would have understood the words of the Agreement to mean taking into account the text, the surrounding circumstances known to the parties and the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40]; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [22].

Surrounding circumstances may only be taken into account if the ordinary meaning of the words used by the parties is ambiguous or susceptible of more than one meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352; McCourt v Cranston [2012] WASCA 60 [23].

11      The generous rule of construction applies equally to an award, but even more so to an industrial agreement.

12      In this case, both the provisions of the Agreement and the Award, set out above, must be read and interpreted together. The Agreement prescribes hours of duty for an employee of 150 hours each “settlement period”, worked on a Monday to Friday basis between the hours of 7.00 am and 6.00 pm each day. These are plainly the “ordinary working hours” for the purposes of the Agreement.

13      By cl 18.5, there is provision for an employer, on the giving of one months’ notice, to change the prescribed or ordinary working hours.  Three circumstances are contemplated. In cl 18.5(a)(i) employees may be required to work their ordinary hours on a Saturday, Sunday or Public Holiday.  In such cases, penalty payments for working ordinary hours as set out in cl 18.5(c) apply.  This does not permit any other change.  Hours worked in excess of ordinary hours, on overtime, will attract the appropriate additional penalty.

14      Secondly, by cl 18.5(a)(ii), there can be a direction by the employer, again on the giving of one months’ notice, for employees to perform shift work. The exercise of this provision also enables “shift work”, so performed, to be worked on Saturdays, Sundays and public holidays. When shift work is to be performed in the exercise of this power to vary the prescribed hours of work, it is governed by cl 20 – Shift Work of the Agreement and cl 21 – Shift Work Allowance of the Award. Clause 20.2 of the Agreement, set out above, prescribes the hours of shifts, whether they be day, afternoon or night shifts. A variation to the night shift penalty, to that prescribed by the Award, is also set out. In the case of the performance of rostered shift work on a Saturday, Sunday or a public holiday, by cl 21(2)(b) of the Award, penalty rates apply in lieu of the shift allowances set out in cl 21(2)(a) of the Award. There are other consequences of work being performed on shift work too.

15      As to cl 21 of the Award, this plainly sets out that officers engaged on shift work are to work hours as prescribed in cl 21(3)(a). The heading to cl 21(3) is “Hours of Duty and Rosters”. By cl 21(3)(c), (d), (e), and (f) of the Award, on the ordinary and natural meaning of the words used in these provisions, an officer engaged on shift work in accordance with cl 20 – Shift Work of the Agreement and cl 21 – Shift Work Allowance of the Award, is to work in accordance with a roster. This is made clear by cl 21(3)(c) and (d) of the Award in particular. These provisions state that an officer can be rostered to work over any seven days per week up to a maximum of six consecutive days. Clause 21(3)(d) prescribes the length of a “roster period”, and a requirement on an employer to publish the roster in advance.

16      The concept of a “roster” in relation to working shift work in industrial parlance, is very well known and understood. A roster is an essential element of a shift work system: Re HEF (Aust) (Tas No 2) 1985 AILR 321. A roster sets out the pattern of shifts and hours to be worked, whether it be on a day, afternoon or night shift basis and furthermore, whether it be in accordance with a fixed, rotating or alternating shift pattern. The preparation and publication of a shift work roster also enables employees to see in advance what working pattern and working hour arrangements will apply to them over the relevant roster period. As has been previously observed, “shift work” is generally the situation where work is performed for an employer by one or more employees who immediately follow the performance of the same work by another one or more employees: Printing and Kindred Industries Union v Public Service Commissioner 1967 AILR 409 per Williams J.

17      The notions of working shift work and rostering go hand in hand. The specific arrangements to apply, will of course be governed by the terms of any relevant award or industrial agreement.

18      Returning then to the terms of the Agreement and Award in this case.  It is plain that cl 18.5(a)(ii) of the Agreement contemplates the actual, and not hypothetical, performance of shift work. Also, the plain language of cl 18.5(b) reaffirms that this is so. The notice of change to the prescribed working hours to permit shift work to be performed, is to be given to “employees affected by the change” (my emphasis). That is, a change to working hours is to be actually made. The change will affect the employees by them working shift work in accordance with the terms of cl 21(3) in relation to their hours of duty and the working of a roster. There is no absurdity or repugnancy created by this construction of the provisions of the Agreement read with the Award. This interpretation is consistent with the ordinary and natural meaning of the language used in both instruments and is entirely consistent with industrial principle.

19      I return then to the questions posed for determination. As to question 1, the answer is “no”.  In the absence of the working of shifts on a roster, in my view, an officer is not a “shift worker” for the purposes of the Agreement and the Award and cannot be deemed to be so.

20      As to question 2, the answer is “yes, but only if the employee agrees in writing”. This is because whether an employee who is working shift work is entitled to an allowance, is governed by the terms of the relevant industrial instrument. Shift loadings or penalties were generally made payable in relation to those shifts that carry with them the greatest inconvenience and disability. In most cases this is afternoon and night shift: Shift Workers’ Case (1972) 72 A.R. 633. That is the scheme adopted in the Agreement and the Award. It is only weekday afternoon and night shifts that attract a shift allowance. A day shift can be worked without a shift penalty applying. Weekend work and work on public holidays is different, as that attracts the higher rate for working on those days, in lieu of shift allowances. However, under cl 21(3)(g) of the Award, an officer, as a shift worker, cannot be kept on day shift, which does not attract a shift allowance, or any other shift, permanently, without the officer’s written agreement.

21      As to question 3, based on my earlier discussion above, the answer is also “no”. It is not permissible to work both the prescribed hours of duty in cl 18.2 and the varied prescribed hours of duty by cl 18.5(a) and (b) of the Agreement at the same time.

22      As to question 4, the answer is “no”. There is a specific regime for the alteration of prescribed hours of work in the Agreement, including making provision for work to be performed on a shift work basis in accordance with a roster. The specific provisions override and displace the general consultation and change provisions of the Agreement, applying the usual rule of interpretation in this respect (see Pearce DC and Geddes RS, Statutory Interpretation in Australia, 4th ed par [4.24]).

23      The answer to question 5, in view of my earlier discussion and my answers to questions 1 to 4, must also be “no”. It is not possible to effectively designate employees, by a standing arrangement, to be shift workers under cl 18.5(a)(ii), when they are not working shifts in accordance with a roster and at the same time, contemporaneously, designate them as employees to whom the terms of cl 18.5(a)(i) of the Agreement also apply. They can be working one or the other working hours arrangement, but not both at the same time.    

24      I declare accordingly.