ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application by United Voice under dispute resolution procedure in United Voice and Wilson Security Safeguard Agreement 2014 (Agreement) – dispute arose from Wilson Security’s proposal to change arrangements regarding payment of shift work allowance where employees worked shifts that finished after 6.30 p.m. – affected employees located at offices of Department of Treasury and Finance in Melbourne CBD – employees who worked regular shifts commencing at 7 a.m. and concluding at 7 p.m. no longer to be considered afternoon shift workers because their ordinary time hours finished prior to 6.30 p.m. – hours in each 12 hour shift to be comprised of 10.86 ordinary time hours and 1.14 overtime hours – Wilson Security therefore submitted that affected employees no longer entitled to 20% afternoon shift loading but would instead be paid time and a half for overtime hours – overall impact of change was reduction in earnings – United Voice claimed changes were contrary to intent of Clause 20 of Agreement, which provided that afternoon shift was any shift finishing after 6.30 p.m. and attracted a 20% loading, required to be paid on all ordinary hours worked in that shift – submitted that Wilson Security had not previously distinguished between shifts that finished after 6.30 p.m. and that shift loading had been paid for all shifts that finished at that time – alternatively, it submitted that overtime hours in any roster should be those worked at end of particular roster cycle e.g. hours worked beyond 38 hours in one week – as consequence, afternoon shift loading would apply to any shift finishing after 6.30 p.m. except where that shift finished by way of overtime worked at end of roster cycle – Wilson Security submitted that Commission did not have jurisdiction at this point to deal with alternative position by United Voice because it had not complied with steps in settlement of disputes procedure in Agreement – submitted that only matter in dispute before Commission was about payment of shift allowance and not about allocation of overtime – also submitted that plain meaning of Clause 20 made it clear that employee was only entitled to afternoon shift loading if their ordinary hours, not overtime hours, extended beyond 6.30 p.m. and the fact that shift allowance had been paid in the past was irrelevant – Commission noted that consequences of dispute were significant for those involved as affected employees would suffer significant decrease in weekly earnings if proposed changes were made – Golden Cockerel considered – considered Full Bench’s position in Linfox that shift work could include overtime hours – Commission adopted Full Bench decision in Linfox which concluded that ‘the real issue in dispute between the parties is whether day workers performing overtime work on a regular basis do become shift workers’ – evidence of employee, Mr Senyuva, not disputed and indicated he regularly worked 3 x 12 hour shifts with each shift finishing at 7 p.m. as well as a further 5 hour shift finishing at 12 noon – Commission satisfied that evidence established pattern of hours which constituted regular repeating weekly roster cycle and regularly involved shifts finishing after 6.30 p.m. – satisfied that shifts finishing after 6.30 p.m. in this regular roster cycle could be considered to be afternoon shifts under definition in Clause 20 of Agreement because they formed part of regular roster pattern – this could be contrasted with working hours that sometimes finished after 6.30 p.m. by way of sporadic or occasional overtime being worked – no indication in Mr Senyuva’s evidence that his working hours involved roster that was structured around shifts concluding before 6.30 p.m. – Commission held there was nothing in definition in Clause 20 that indicated that a shift must finish after 6.30 p.m. by way of only ordinary time hours being worked – held that shift arrangements detailed in evidence of Mr Senyuva came within definition of ‘afternoon shift’ in Agreement and therefore attracted 20% allowance for each ordinary hour worked – Commission declined to express any concluded view about overtime allocation and emphasised that decision was based primarily on evidence concerning working patterns of Mr Senyuva, which were understood to be similar working patterns of other affected employees – therefore, decision should not be considered to necessarily have application to other forms of roster arrangements or working patterns that may well be viewed and interpreted differently in terms of entitlements that applied – Commission held that hours worked constituted regular and repeating weekly roster cycle with rostered shifts finishing after 6.30 p.m., and that these shifts could be considered ‘Afternoon shifts’ under definition in Clause 20 of Agreement. United Voice v Wilson Security P/L t/a Wilson Security
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